LESBIAN/GAY LAW NOTES
Summer 1994
Lesbian & Gay Law Association of Greater New York
Editor-in-Chief: Professor Arthur S. Leonard, New York Law
School, 57 Worth Street, New York, N.Y. 10013
asleonard@aol.com
Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340,
NYC 10003. 212-353-9118
(C) 1994 by Lesbian & Gay Law Association of Greater New York
ISSN 8755-9021
Contributing Writers:
Paula L. Ettelbrick, Public Policy Director, Nat'l Center for
Lesbian Rights, and Adjunct Professor, New York Law School
Kenneth Rutman, Adjunct Professor, New York Law School
Steven Kolodny, Esq., New York
Kevin Isom, Esq., Atlanta
Dirk Williams, Boston
Robert Bourguignon, Student, Brooklyn Law School
Paul Twarog, Student, New York Law School
FEDERAL COURT ORDERS REINSTATEMENT OF COL. CAMMERMEYER AS NAVY
MOVES TO EXPEL THREE GAY MEN
Judge Thomas Zilly, U.S. District Court for the Western District
of Washington, reinstated Colonel Margarethe Cammermeyer in the
Washington State National Guard, ruling her discharge violated
constitutional rights of equal protection and due process.
Cammermeyer v. Aspin, 1994 WL 238154 (June 1). Using rational
basis review, the court granted summary judgment to Cammermeyer
and struck down the Army regulation used to discharge her, on the
ground that it was based on nothing more than prejudice and was
thus unconstitutional. After an unsuccessful attempt by the
Defense Department to get Zilly or the 9th Circuit to delay her
reinstatement, Cammermeyer was ordered to report for duty on July
10, just days before Navy hearing boards ordered the discharge of
three gay men under the "don't ask, don't tell" policy.
Before addressing Cammermeyer's constitutional claims, Zilly
examined several important preliminary issues concerning the
rational basis standard of review. Relying heavily on Pruitt v.
Cheney, 963 F.2d 1150 (9th Cir.), cert. den'd, 113 S.Ct. 655
(1992), the case credited with laying out a "rational basis with
teeth" test for lesbian and gay military cases, Zilly rejected
the government's argument that the court should simply defer to
the military's judgment and uphold the regulation based on the
Army's facial assertion that allowing lesbians and gay men to
serve would adversely affect discipline, good order and morale.
This kind of deference would "come close to denying reviewability
at all." Instead, the court's obligation is to look behind the
assertions to determine whether they provide a factual rational
relationship to the military's possible goals. The court also
rejected the government's interpretation of Heller v. Doe, 113
S.Ct. 2637 (1993), that the government could rely simply on
unsupported speculation under rational basis review. Instead,
Zilly found that, though Heller does not require the government
to submit evidence to support its policy, "the Court remains
obligated to determine whether there is a rational basis for the
policy." That review necessarily depends upon factual support of
the government's justifications for the policy. The court also
examined the dubious distinction between status and conduct,
finding that Cammermeyer was indisputably discharged for simply
declaring she is a lesbian. Her status as a lesbian by itself
"is not reliable evidence of her desire or propensity to engage
in homosexual conduct" (a finding which presumably would justify
her discharge), and thus cannot support the government's
underlying contention that she is likely to engage in "homosexual
conduct." As a result, the court rejected the argument that
sexual conduct was a factor in the case.
The central ruling is that a policy or justification based solely
on prejudice will not pass rational basis review under equal
protection or due process. Further, speculation and unsupported
assumptions are insufficient to support a rational justification.
The military provided the predictable set of rationales for its
policy: incompatibility with military service, adverse effect on
discipline, good order and morale, disruption of unit cohesion,
detriment to rank and command, violation of heterosexuals'
privacy rights, difficulty in recruitment of military personnel,
public disapproval of lesbians and gay men in the military, and
security risks. Cammermeyer countered with several studies,
including the government's own, concluding that lesbians and gay
men can and have served ably in the military without affecting
discipline or unit cohesion, as well as President Clinton's and
other official's admissions revealing that prejudice lies at the
heart of the ban. The biggest hole in the government's
justifications is its inability to point to any real instances or
problems to lend reality to its speculation. Zilly concluded
that "the rationales offered by the Government to justify its
exclusion of homosexual servicemembers are grounded solely in
prejudice. . . . A cardinal principle of equal protection law is
that the federal government cannot discriminate against a class
in order to give effect to the prejudice of others." On the due
process claim the court ruled similarly, stating that
"[r]egulations based solely on prejudice are irrational as a
matter of law and serve no legitimate governmental purpose." As
such, the finding of a fundamental right was not necessary since
the regulation and its justification could not withstand even
rational basis review. The court decided that Cammermeyer's
First Amendment claim was foreclosed by controlling Ninth Circuit
case law, namely Pruitt.
Cammermeyer was reinstated to her job. The court rejected the
government's motion for a stay of reinstatement pending the
appeal, which was upheld by the Ninth Circuit. On July 10, 1994,
the New York Times reported that Colonel Cammermeyer had
officially reported back to work. P.L.E.
Discharge hearings occurred during the second week of July in the
cases of Tracy Thorne, Dirk Selland and Mark Philips, Naval
officers who continued to serve after their homosexuality became
known. Their cases provide a curious illustration of how the
"Don't Ask, Don't Tell" policy may revive a previously
unsuccessful First Amendment argument in gay discharge cases.
The Seventh and Ninth Circuits had previously rejected the claim
that discharging a service member on the basis of their statement
that they are gay violates the First Amendment, finding that the
discharges did not violate free speech because the service
members were discharged for what the speech revealed about them,
i.e., their sexual orientation, not for the speech as such.
That's now turned on its head; under the new policy, it's OK to
be gay and serve in the military, as long as you don't talk about
it. Presumably, Thorne, Selland and Philips are being discharged
not for being gay, but for having said so. And the Navy is
taking the position that statements they made prior to the
adoption of the current policy may be used to discharge them
under the current policy. Philips revealed his homosexuality in
December 1992 in response to questioning from his commanding
officer -- questioning which is forbidden under the "don't ask,
don't tell" policy. Selland, in a burst of naive enthusiasm,
"came out" to his commander after Bill Clinton's inauguration,
believing the ban was about to be lifted. And Thorne came out in
a television interview during public debate over the ban. By the
end of the week, hearing boards had recommended the discharge of
all three men, and their attorneys had announced their intention
to appeal to the courts.
Curiously, the national media have failed to report about the
collapse of unit cohesion and morale in the armed forces that has
occurred over the past year as a result of the continued service
by openly gay service members such as Keith Meinhold, Selland,
Thorne, Philips, Justin Elzie and others. We must assume this
has occurred, since all the chiefs of staff testified under oath
that it would happen when they appeared before Sen. Nunn's
committee last spring and summer, and their testimonial
assertions were incorporated as congressional findings of fact in
the Defense appropriations bill enacted by Congress last fall.
It must be so, so where are the news reports?
Another irony: On May 23, Navy Secretary John Dalton issued a
statement establishing a policy of non-discrimination on the
basis of sexual orientation for civilian employees of the Navy.
Evidently, unit cohesion and morale among civilian employees are
unnecessary. (We imagine this progressive step is being taken
because civilian employees don't shower together -- at least on
base!) A.S.L.
VIRGINIA APPEALS COURT AWARDS CUSTODY TO LESBIAN MOM
Unanimously reversing a notably homophobic decision by Henrico
County Circuit Court Judge Buford M. Parsons, Jr., the Court of
Appeals of Virginia ruled June 21 that Sharon Bottoms should have
custody of her 3-year old son, rejecting the custody claim of
Sharon's mother Kay, to whom Parsons had awarded custody.
Bottoms v. Bottoms, 1994 WL 278017. The opinion by Judge Sam W.
Coleman, III, decisively rejected Parsons' finding that a natural
mother living in an openly-lesbian relationship with another
woman is per se unfit for custody, and ordered the lower court to
restore custody to Sharon Bottoms.
The trial court's decision relied heavily on the Virginia Supreme
Court's 1985 decision in Roe v. Roe, 324 S.E.2d 691, in which
that court held that in a custody dispute between natural
parents, the homosexual parent openly living in a homosexual
relationship -- in that case, the father -- was presumptively
less fit to have custody than the non-homosexual parent. From
this, Parsons extracted a holding that lesbian mothers living
with their partners are presumptively unfit. Coleman found that
Parsons' reliance on Roe was misplaced in a case pitting a
natural mother against a non-parent. Indeed, the Roe court
specifically disclaimed any holding that homosexuals were "per
se" unfit. Coleman pointed out that in Roe the court's task was
to determine which of two natural parents was more fit. In a
case such as Bottoms', the issue for the court is to determine
whether the challenged parent is unfit; only after a finding of
unfitness could the court consider assigning custody to a non-
parent such as Kay Bottoms.
As to Sharon's fitness, Coleman found that the record did not
contain evidence supporting Parsons' conclusions. Rather than
the "clear and convincing evidence" of unfitness that is required
to deprive a natural parent of custody, Coleman found here that
"No credible evidence proves that Sharon Bottoms is an unfit
parent or that her having custody of her son will be harmful to
his physical, emotional, or psychological well-being." Trial
testimony showed Sharon had not been an "ideal" mother in all
respects, but that was not the standard to be met. The
psychological evaluation found her son to be a "happy, well-
adjusted youngster" and concluded that the mother-child
relationship was a good one.
Parsons had also relied on Virginia's sodomy law, and Bottoms'
trial testimony that she engaged in oral sex with her domestic
partner, April Wade, several times each week (out of the presence
of her son). For Parsons, Bottoms was a criminal undeserving of
child custody. Coleman disagreed. Although the Virginia Supreme
Court ruled in Doe v. Doe, 284 S.E.2d 799 (1981) that a mother's
"lesbian lifestyle" was a factor to be considered in a custody
dispute, the court had held in that case that it was not a
dispositive factor, as Parsons seemed to treat it. "The fact
that a parent has committed a crime does not render a parent
unfit, unless such criminal conduct impacts upon or is harmful to
the child, or unless other special circumstances exist aside from
the parent's conduct that would render continued custody with the
parent deleterious to the child," wrote Coleman. The record
revealed no such special circumstances in this case. "A court
will not remove a child from the custody of a parent, based on
proof that the parent is engaged in private, illegal sexual
conduct or conduct considered by some to be deviant, in the
absence of proof that such behavior or activity poses a
substantial threat of harm to a child's emotional, psychological,
or physical well-being." Coleman noted that other recent
appellate decisions in Alabama and Mississippi awarded custody to
grandparents as against natural lesbian mothers, but that in both
cases there was evidence of complicating factors, such as drug
use in the home or child neglect by the mother. In neither case
had the mother's sexuality been the determinative factor. The
court remanded the case "with directions that the circuit court
enter an order effectuating the resumption of custody by the
mother of her son."
Sharon's attorney, Donald K. Butler (cooperating attorney for the
ACLU) hailed the decision as a major breakthrough for gay parents
in Virginia. Kay's attorney, R.R. Ryder, claiming that Sharon's
son was in grave danger, vowed to appeal to the Virginia Supreme
Court on a pro bono basis, and to apply for a stay of the Court
of Appeals decision so that the son would remain in the
grandmother's custody. News reports at the end of June indicated
that Virginia court rules may require that the son stay with Kay
Bottoms so long as her appeal to the Virginia Supreme Court is
pending, but Sharon's lawyers were attempting to devise a
mechanism to secure the son's immediate return. A.S.L.
LESBIAN/GAY LEGAL NEWS
Supreme Court: No Liability in Transsexual Inmate's Rape Unless
Officials Were Subjectively Reckless
In a case involving a pre-operative transsexual who was beaten
and raped in prison, the U.S. Supreme Court ruled June 6 that
prison conditions constitute cruel and unusual punishment only if
officials know of, and disregard, an excessive risk to an
inmate's health or safety. The plaintiff in Farmer v. Brennan,
1994 WL 237595, who was taking estrogen and "project[ed] feminine
characteristics," was serving in a federal penitentiary for
credit card fraud. After the attack, Farmer sought damages and an
injunction barring future confinement in any penitentiary. The
complaint alleged that by placing Farmer in the prison's general
population despite knowing that Farmer would be particularly
vulnerable to sexual attack, officials violated the Eighth
Amendment prohibition against cruel and unusual punishment
through a deliberately indifferent failure to protect her safety.
The Supreme Court's decision turned on the definition of
"deliberate indifference," the standard for determining whether
prison officials are liable for failing to prevent inmate
assaults. Resolving a circuit split, the Court defined the term
as "subjective recklessness," a test based on state of mind.
Prison officials are not liable unless they have "knowledge of a
substantial risk of serious harm" and they disregard that risk.
The Court rejected a more liberal, objective test based on what
officials knew or should have known. Without resolving the case,
the justices remanded it to the district court. That court had
dismissed the claim, apparently because Farmer failed to warn
prison officials of the risk in advance. The Supreme Court ruled
Farmer should have the chance to establish that they otherwise
knew of the danger, even without such advance notice.
Justice Souter's opinion was joined by seven other justices.
Justices Blackmun and Stevens wrote separate concurrences,
disagreeing with the view that "deliberate indifference" should
be measured subjectively. Justice Thomas concurred in the
judgment alone; he wrote that prison conditions can never
constitute cruel and unusual punishment unless they are literally
part of a sentence. K.R.
Wisconsin Supreme Court, Brooklyn (NY) Surrogate, Deny Second-
Parent Adoption Petitions
The lesson of the past several years in Wisconsin: never appeal a
statutory construction case involving gay or lesbian issues.
Civil rights claims, domestic partnership, and lesbian co-parent
visitation cases have all gone done in flames on appeal. And
now, a new addition to the pack from the Wisconsin Supreme Court
is its decision in Interest of Angel Lace M., 1994 WL 248253
(June 8) denying second parent adoption to a lesbian co-parent,
despite the social worker's testimony that it would be in the
child's best interests and the trial court's finding of the same.
The court's reasoning is standard and predictable: the statute
simply does not explicitly allow for second parent adoptions even
where it is clearly in the child's best interests. What was not
standard was the court's action in reaching out to bring in the
heavy hitters to argue against the lesbian mothers, thus creating
a contested case out of one that, by definition, was uncontested.
When the state's Attorney General failed to enter the case
against the adoption, and after the U.S. Department of Justice
declined the court's request that the Justice Department weigh in
against the women seeking the adoption, the court turned to the
largest law firm in Wisconsin, ordering the firm to file a brief
in opposition to the mothers' request for adoption. The firm, of
course, represented no party nor any particular interest in the
case. Its sole job was to give the court reasons for not
granting the adoption.
Three judges dissented from this stingy decision. Chief Justice
Heffernan's dissent argued forcefully that the legislature had
clearly instructed courts to interpret the adoption statutes
broadly, always holding the child's interests as paramount. By
adopting a narrow construction, the majority misinterpreted the
law and disregarded the child's interests. Justice Heffernan
reminded the majority that this same court has already closed
three avenues to the recognition of lesbian co-parent rights
(referring to Interest of Z.J.H., 162 Wis.2d 1002 (1991) where
the court rejected claims of custody, visitation, and enforcement
of a relationship agreement presented by a non-legal lesbian
mother after the couple's separation), and pleaded with them not
to close yet another. Justice Bablitch's dissent pointed out
that the legislature provided for liberal interpretation of the
adoption statute because it knew that it could not anticipate all
future situations. The court, then, abdicates its responsibility
when it pleads with the legislature to do something, especially
when it is clear that the legislature is unlikely to act on these
issues.
The Surrogate's Court for Kings County (Brooklyn), NY, denied an
application for pre-adoption certification sought by a non-
biological lesbian mother who wished to adopt her partner's child
as a second parent. In Matter of Christine, NYLJ, 6/16/94, p.
30, Surrogate Bloom noted the split among trial courts throughout
the state on the issue of second parent adoption, and took a
strict constructionist view of the statute, ruling that "the
petitioner does not qualify to adopt the infant in this case."
According to the judge, only a parent's spouse may adopt her
child. P.L.E.
By contrast, on June 24 the High Court in Manchester, England,
granted a lesbian couple joint recognition as parents of a 22-
month-old child borne by one of them after becoming pregnant by a
male friend. (Washington Blade, July 8). A.S.L.
Minnesota Supreme Court Excludes Pornography Evidence in Murder
of Gay Man; Texas Appeals Court Rejects Homosexual Panic Defense
The Minnesota Supreme Court rejected the broad introduction into
evidence of pornographic materials to prove the character of a
murder victim. In State v. Starkey, 1994 WL 221118 (May 27), the
high court, reversing the appellate court which held that the
trial court had committed harmless error in excluding the
materials, stated that the defendant had not demonstrated how the
materials were relevant, nor how their probative value outweighed
the danger of unfair prejudice. However, the court left open the
possibility that such materials may be admissible when a
defendant narrowly defines and exhibits their relevance.
Defendant Starkey claims that he was picked up on a downtown
Minneapolis street by Earl Craig and invited back to Craig's
townhouse to smoke marijuana. Starkey contends that once he was
at the townhouse, he became nervous because it became apparent
that Craig was gay, and Starkey is not. He considered escaping
through a bathroom window, but claims that before he could, he
was approached by a knife-wielding, scantily clad Craig who led
him up to his bedroom and expressed an interest in having anal
intercourse with him. Starkey recounts that a struggle ensued,
and he accidentally, fatally stabbed Starkey in the neck.
Starkey watched Craig die, washed the blood from his arms, turned
on hard-rock music on the stereo, and wrote "KKK Lives" on one of
the walls of the townhouse, as he states, "to try to cover up
what happened." He left the townhouse in Craig's jeep and
disposed of the knife in a nearby river. He returned to the
townhouse to ensure that Craig was dead, took some credit cards,
money and liquor, and again left in the jeep. He was picked up
several days later for auto theft and eventually admitted to
killing Craig.
The defense attempted to admit into evidence pornographic books,
magazines and tapes which were found in Craig's townhouse. It
claimed that the pornography included material featuring young
men being forcibly raped by older men, and other violent
homosexual acts. Starkey contended that this material was
emblematic of a certain lifestyle, and thus rebutted the
prosecution's claim that Craig was a nonaggressive, passive
individual. He also claimed that this bolstered his defense that
he was the victim of an attempted rape. The trial court ruled
the pornography to be inadmissable but allowed the defense on
cross-examination to question a police officer about the eight
titles visible in a videotape of Craig's apartment. Starkey was
convicted of intentional murder in the second degree. The court
of appeals found the decision of the trial court on the
pornography to be excessively restrictive and held that testimony
of the material's violent content would have supported Starkey's
defense and should have been admitted, however, its exclusion was
harmless error.
On further appeal, the Minnesota Supreme Court held that
pornography is not relevant to any issue in the case and
Starkey's assertion that Craig fantasized about violent rape has
no support in the record except what Starkey inferred from
Craig's possession of the pornography. As the defense did not
seek to bolster the introduction of pornography with scientific
studies or expert testimony relating the possession of
pornography with the commission of violent acts, the high court
observed that the jury would have been required to wade through
all of the pornographic materials and decide on its own which, if
any, were relevant. The court failed to see how this would shed
light on the truthfulness of Starkey's version of the events.
Recalling State v. Naylor, 474 N.W.2d 314 (Minn. 1991), a case
involving a ritualistic slaying of a cult member where books
about satanism and witchcraft were introduced at trial, the court
stated that simply because books, magazines, or films have been
admitted in some criminal trials does not mean that they should
be admitted in every trial. However, the supreme court left ajar
the door on the admissability of this type of evidence in
Minnesota. Stating that had Starkey pointed to specific items in
Craig's collection of pornography and established their relevance
to his version of the killing, and shown that their probative
value outweighed the danger of unfair prejudice, they may have
been admissible.
Starkey also claimed that the evidence was insufficient to
convict him of second degree murder. The court observed that,
contrary to defendant's statement, the victim's body did not show
signs of a struggle, there was no evidence of marijuana in the
victim's blood stream, and defendant's actions after the murder
suggested criminal intent. Thus, there was sufficient evidence
for the jury to discount Starkey's version of events and reach
the conclusion it did. P.T.
The Texas Court of Criminal Appeals, that state's highest
criminal court, ruled June 8 in Riddle v. State, 1994 WL 242673,
that a "homosexual advance" does not justify deadly force in
"self-defense." Defendant Granville Riddle claims he went to the
victim's house to see if he wanted to go out drinking. Riddle
found the door unlocked, entered the house, and found the victim
"drunk, passed out" in the bedroom. Riddle woke the victim, who
Riddle claims told him that "he wanted to have a homosexual
relationship with him. As appellant got up to leave, the victim
grabbed appellant by the arm, pulled appellant on top of him, put
his lips on appellant's ear, and put one hand on appellant's
butt." Riddle then beat the victim to death with a tire iron.
Riddle testified at trial that "the more he hit him the madder he
got. The victim was struck in the head at least fifteen times."
The forensic pathologist testified that the victim had so much
alcohol in his system that his motor and sensory functions were
"totally out." Riddle was convicted of capital murder and the
trial court imposed the death penalty, having refused to instruct
the jury on Riddle's self-defense argument. On appeal, the court
affirmed the trial court's instruction refusal: "There was no
testimony the victim ever attempted to sexually assault appellant
or harm him in any way after the initial blow to the victim's
head. Appellant did not testify he could not retreat or he
attempted to retreat but was prevented from doing so. There was
no evidence that Bennett wielded a weapon which prevented
appellant from leaving. Appellant was not justified in his use
of deadly force. A reasonable person would have retreated
without using deadly force and, therefore, appellant was not
entitled to an instruction on self-defense." A.S.L.
NJ Supreme Court: Penalty Enhancement OK; Hate Crimes Statute
Unconstitutional
In State v. Vawter, 1994 WL 226692 (May 26), the New Jersey
Supreme Court declared the state's hate crimes statutes, NJSA
2C:33-10 ( 10) and -11 ( 11), unconstitutional in light of
R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992). The
defendants were charged with defacing a synagogue with a swastika
and related graffiti and a church with a satanic pentagram.
Counts one through four of the indictment charged the defendants
with putting another in fear of violence by placement of a symbol
or graffiti on property, a third degree offense, in violation of
sec. 10. Counts five through eight charged the defendants with
fourth degree defacement, contrary to sec. 11. The remaining
counts charged defendants with criminal mischief, and with
conspiracy with regard to the first ten counts. The trial court
denied defendants' motion to dismiss, and the Appellate Division
granted leave to appeal.
Section 10 provides: "A person is guilty of a crime in the third
degree if he purposely, knowingly or recklessly puts or attempts
to put another in fear of bodily violence by placing on public or
private property a symbol, an object, a characterization, an
appellation or graffiti that exposes another to threats of
violence, contempt, or hatred on the basis of race, color, creed
or religion, including, but not limited to[,] a burning cross or
a Nazi swastika. A person shall not be guilty of an attempt
unless his actions cause a serious and imminent likelihood of
causing fear of unlawful bodily violence." Section 11 states: "A
person is guilty of a crime of the fourth degree if he purposely
defaces or damages, without authorization of the owner or tenant,
any private premises or property primarily used for religious,
educational, residential, memorial, charitable, or cemetery
purposes, of for assembly by persons of a particular race, color,
creed, or religion by placing thereon a symbol, an object, a
characterization, an appellation, or graffiti that exposes
another to threat of violence, contempt or hatred on the basis of
race, color, creed or religion, including, but not limited to, a
burning cross or a Nazi swastika."
Notwithstanding its expressed reluctance to do so, the court
followed Justice Scalia's rationale in R.A.V., ruling that the
statutes impermissibly attempted to regulate speech based on its
content, and that the statutes did not fall into any recognized
exceptions to the prohibition against content discrimination in
the area of proscribable speech.
In contrast, ruling the same day, the court substantially upheld
the penalty enhancement provisions of the state's harassment
statute, NJSA 2C:33-4d ( d), in State v. Mortimore, 1994 WL
226632. In this case, the defendant, who pled guilty to fourth
degree harassment for painting offensive graffiti on the house of
a local Pakistani family, moved to dismiss at sentencing under
the 1st and 14th amendments to the U.S. Constitution as construed
in R.A.V. and analogous portions of the state constitution. The
trial court granted the motion, and the Supreme Court certified
the question directly on the state's appeal.
Section d authorizes penalty enhancement in the following
circumstance: "A person commits a crime of the fourth degree if
in committing an offense under this section he acted, at least in
part, with ill will, hatred or bias toward and with a purpose to
intimidate an individual or group of individuals because of race,
color, religion, sexual orientation or ethnicity." The court
ruled that this statute was dissimilar from those in R.A.V. or
Vawter because it did not criminalize conduct based on
communicative content; rather, taking guidance from Wisconsin v.
Mitchell, 113 S.Ct. 2194 (1993), it allowed for penalty
enhancement for actions which were criminal without regard to
motive. The court also rejected the state constitutional free
speech claims, and the 14th amendment equal protection claims,
ruling that the state constitution did not afford the protections
sought and that because the classifications made did not
jeopardize the defendant's right of free speech, no heightened
standard of scrutiny was necessary. The court did, however,
strike down the portion of the statute dealing with ill will,
hatred or bias as impermissibly vague. As modified, the statute
reads: "A person commits a crime in the fourth degree if in
committing an offense under this section, he acted with a purpose
to intimidate an individual or group of individuals because of
race, religion, sexual orientation or ethnicity." S.K.
In State v. T.B.D., 1994 WL 256930 (June 14), the Florida Court
of Appeals, 1st District, ruled that sec. 876.18, invoked in a
cross-burning case, violated the First Amendment right of free
speech, using an overbreadth analysis. A.S.L.
Massachusetts Supreme Court Issues Opinion in Parade Case
On July 11 the Massachusetts Supreme Judicial Court issued its
opinion in Irish-American Gay, Lesbian and Bisexual Group of
Boston v. City of Boston, 1994 WL 362042, explaining why on March
11 it had approved an order by trial judge J. Harold Flannery
that the plaintiffs be allowed to march as a group in Boston's
St. Patrick's Day - Evacuation Day Parade. The opinion of the
court was written by Chief Justice Liacos. Judge Nolan
dissented. In effect, the court found that the trial judge's
factual and legal conclusions were supported by the trial record
and showed no obvious error. Trial Judge Flannery found that the
parade was a public accommodation, subject to the Massachusetts
Law Against Discrimination that forbids sexual orientation
discrimination, and that no First Amendment rights of the South
Boston Allied War Veterans Council ("the Council") -- the group
that normally operates the parade -- were violated by ordering
them to let a gay group march under its own banner. Flannery
found that the Council normally allowed just about any sort of
group to march, and that despite various reasons announced for
turning down the gay group, it all boiled down to sexual
orientation discrimination. In so ruling, the court upheld the
public accommodations law from constitutional attack, and found
that the parade sent no particular message, so adding the gay
group couldn't amount to "changing" the parade's message. The
court did not consider state constitutional claims on appeal,
finding that they had not been adequately preserved for review.
Dissenting, Justice Nolan argued that the trial judge and the
court had totally misconstrued the statute and the nature of the
appellants' First Amendment claim. He argued that it was not
necessary to find that the existing parade presented a coherent
message in order to find that the organizers' First Amendment
rights of both speech and association were violated by forcing
them to allow participation of a group with whose message they
disagreed. Nolan observed that the Council had no objection to
letting gays march; rather, it had an objection to letting a gay
group use the parade to convey a particular message. Thus, Nolan
concluded that the Council had not even discriminated against the
members of the plaintiffs' organization on the basis of their
sexual orientation, and that Flannery's decision was a flagrantly
unconstitutional content-based regulation of the Council's free
speech rights. "We have never been in the business of protecting
only internally consistent, narrowly focused, politically
sensitive speech," he concluded. "It is a travesty that we today
vacate this precedent. Our holding today, while, to some,
seemingly pushes us forward, really pushes us back over 200
years, to an era that lacked the protection guaranteed by the
First Amendment. I dissent."
The Council announced it would file a petition for certiorari
with the U.S. Supreme Court on its First Amendment claims. As a
result of the court's order of March 11, the Council called off
the 1994 parade, although a rump group staged its own "gay-free"
parade without benefit of license. Gay & Lesbian Advocates &
Defenders, through cooperating attorney Philip M. Cronin and
staff attorney Mary Bonauto, provided representation to the
plaintiffs.
The Supreme Judicial Court's ruling appeared somewhat
inconsistent with a recent First Amendment ruling by the Kentucky
Supreme Court in Capital Area Right to Life, Inc. v. Downtown
Frankfort, Inc., 862 S.W.2d 297 (1993), in which the U.S. Supreme
Court denied certiorari on May 31 (114 S.Ct. 2132, 2153). In
that case, the state court upheld the right of a non-profit
corporation that runs a street festival in Frankfort, Kentucky,
to bar participation by an anti-abortion group. The court found
that although the festival was clothed with enough state
entanglement and purpose to be bound by First Amendment
requirements, the purpose of the festival was "fun and
entertainment," and thus a rule barring all groups with political
messages was "content-neutral." Dissenting from the denial of
certiorari, Justice Sandra Day O'Connor argued that the fact that
the festival excluded all political voices, and was thus
"viewpoint neutral," did not alter the plain fact that the anti-
abortion group was excluded because of the content of its
message. It will be interesting to see whether the Supreme Court
takes the Boston case, in light of its cert denial in the
Frankfort case. A.S.L.
California Appeal Court Holds Religious Landlord Can Discriminate
Against Unmarried Couples
In an important case for those of us who cannot legally marry, as
well as for non-gays who choose not to marry, a California
appeals court favored a landlord's right to freely practice her
religion over tenants' rights to not be discriminated against in
obtaining housing based on their marital status. Smith v.
Commission of Fair Employment and Housing, 1994 WL 220343 (Cal.
App., 3d Dist., May 26). Evelyn Smith, who held the religious
belief that fornication is a sin, refused to rent an apartment to
an unmarried straight couple. The spurned tenants instituted an
administrative discrimination proceeding. The administrative
agency found for the tenants, awarded them monetary damages, and
required Smith to sign and post a cease and desist order on her
property.
On appeal, the court found that the California anti-
discrimination statute barring discrimination against unmarried
persons interfered with Smith's right to freely exercise her
religion. The Appeals Court found that Ms. Smith's right was a
"hybrid" right within the meaning of Employment Division v.
Smith, 494 U.S. 872 (1990); i.e., her free exercise claim was
made in conjunction with a free speech claim -- the requirement
that she sign and post the notice. Therefore, the court
considered whether the substantial burden on religion was
balanced by a compelling governmental interest in the regulation.
The court was highly deferential to Smith's claim that the law
burdened her practice of her religion, by making her complicit in
the fornication (although the opinion never mentions how or why
the Smith believed the tenants were going to use the apartment
for fornication). More importantly, the appeals court found that
the governmental interest in enforcing the statute was not
compelling, based in large part on many instances in which the
law affords married persons rights which are not given to
unmarried persons (e.g., an unmarried cohabitant could not bring
a claim for loss of consortium). Also, the state allowed its own
universities to discriminate against unmarried couples in
providing housing to students. The court also based its decision
on state constitutional grounds, Religious Freedom Restoration
Act (federal legislation restoring the protection of free
exercise which existed prior to Employment Division v. Smith) and
the tenants' failure to show that Smith had violated their state
constitutional right to privacy.
The opinion is odious for acknowledging without question
traditional notions of (heterosexual) marriage as the basis for
"defining the fundamental relation rights and responsibilities of
persons in an organized society," and for dismissing without
serious discussion the arguments which would lead to a very
different result. Its implications are even more chilling: if
this decision stands without further review, it could be the
first step toward an ever-enlarging exception allowing
discrimination against lesbians and gay men (among others) for
religious reasons. D.W.
The decision is consistent with a ruling by another California
court of appeal, Donahue v. Fair Employment and Housing
Commission, 7 Cal.App.4th 1498, 2 Cal.Rptr.2d 32 (Cal. App., 2nd
Dist. 1991), app. dismissed, 859 P.2d 671 (Cal. Sup. Ct., 1993),
in which the California Supreme Court dismissed an appeal by the
administrative agency while indicating that its dismissal was not
to be treated as a substantive precedent. What most
significantly distinguishes Smith from Donahue is Smith's
reliance on the Religious Freedom Restoration Act; Smith might be
construed to hold that as a matter of federal law individual
landlords may rely on their religious beliefs to deny housing to
unmarried couples (including lesbian or gay couples). A similar
case is pending in the Massachusetts Supreme Judicial Court.
In an unusual move, California Attorney General Dan Lungren's
office announced that it agreed with the court's decision and
would not represent the Commission in appealing the case. The
announcement was made by a spokesperson for Lungren who is the
son of Judge Puglia, author of the court's opinion. The
Commission retained its own attorney to press an appeal. A.S.L.
Louisiana Judge Blocks Sodomy Law Enforcement
Some folks never give up. New Orleans attorney John Rawls,
representing a group called Louisiana Electorate of Gays and
Lesbians, Inc., is back in Orleans Parish Civil District Court
seeking invalidation of Louisiana's crime against nature statute.
On Feb. 28, the Louisiana Supreme Court ducked this issue in
State v. Baxley, 633 So.2d 142, holding that defendant Baxley,
alleged to have solicited a police officer to have oral sex for
pay on a public street, did not have standing to challenge the
constitutionality of the law as applied to consenting adults in
private. But on June 23, Judge Michael Bagneris issued a
preliminary injunction "prohibiting enforcement of La. Rev. Stat.
Ann. sec. 14:89(A)(1) insofar as it prohibits non-commercial,
consensual, private sexual behavior by adult human beings,
pending these proceedings."
The challenged statute in Louisiana Electorate of Gays and
Lesbians, Inc. v. State of Louisiana, No. 94-9260, forbids
"unnatural carnal copulation by a human being with another of the
same sex or opposite sex or with an animal. . . Emission is not
necessary; and, when committed by a human being with another, the
use of the genital organ of one of the offenders of whatever sex
is sufficient to constitute the crime." The maximum penalty for
violation is $2,000 fine, up to five years imprisonment, or both.
Individual named plaintiffs filed affidavits with the court
stating that they had violated and would continue to violate the
statute with other consenting adults in private. On that basis,
Bagneris found that they had standing to seek injunctive relief
barring enforcement of the statute against them. As a threshold
matter, Bagneris held that the plaintiffs had "shown with
reasonable certainty that [the statute], insofar as it prohibits
non-commercial, consensual, private sexual behavior by adult
human beings, is manifestly unconstitutional." Bagneris premised
this conclusion on art. I, sec. 5 of the Louisiana constitution,
which has been repeatedly construed by the state's Supreme Court
to contain a right of privacy. "[This] Court cannot imagine an
individual activity more personally private and more deserving of
constitutional privacy protection than non-commercial,
consensual, private sexual behavior by adult human beings. It is
unconscionable that a law prohibiting such behavior be viewed by
any reasonable mind as anything other than a violation of the
constitutional right of privacy." Bagneris also called the
statute an "anachronism," stating his agreement with Justice
Harry Blackmun's dissenting opinion in Bowers v. Hardwick. "This
Court cannot name, nor have Defendants shown, any compelling
state interest in regulating non-commercial, consensual, private
sexual behavior by adult human beings."
Bagneris credited an affidavit by David M. Schnarch, Ph.D., a
psychologist, asserting that the sodomy law has a "direct
deleterious and psychological effect on lesbians and gay men" in
order to find irreparable injury, and also found the necessary
prerequisite under Louisiana law of a "reasonable certainty that
existing property rights will be destroyed because enforcement of
these statutes directly threatens the livelihoods of some of
these Petitioners" because a conviction under the statute might
endanger their professional licenses or commissions, thus
"effectively bringing about an end to the individual's chosen
career."
No word yet on how soon Bagneris will schedule a trial on the
merits, but in the meantime enforcement of the law is enjoined.
Way to go, John Rawls!
Meanwhile, in a pending heterosexual sodomy prosecution, Judge
Clarence McManus of the 24th Judicial District Court found
Bagneris' order irrelevant to the case before him. Christine
Morello and Grayson Crespo were arrested after police officers
observed Morello performing oral sex on Crespo as he drove his
truck slowly down Phlox Avenue in Metairie, Louisiana. Although
Morello's lawyer sought to make a constitutional privacy
argument, McManus ruled on June 30 that privacy was irrelevant to
this case. (New Orleans Times Picayune, July 1). A.S.L.
Readers may recall Miller v. State, 636 So.2d 391 (April 14,
1994), in which the Mississippi Supreme Court rejected a state
constitutional challenge to the sodomy law in that state in an
opinion by Justice Fred L. Banks, Jr., which asserted that there
was no final appellate authority anywhere for the proposition
that such a statute was unconstitutional. We promptly wrote to
Justice Banks to inform him of the Kentucky Supreme Court's
opinion in Commonwealth v. Wasson, 842 S.W.2d 487 (1992). Little
good it did us. The court issued a modified opinion on Denial of
Rehearing on June 9, omitting its ignorant reference but
otherwise sticking with its prior holding. We received a letter
from Justice Banks thanking us for bringing the Kentucky decision
to his attention and stating, "Obviously, I overlooked it." But
evidently having it called to his attention did not change his
mind about the case! A.S.L.
Most Ballot Measures Fall Short of Required Signatures; Other
Initiatives Updates
As deadlines passed for submission of petition signatures for
November ballot measures, it became clear that organizations
seeking to place anti-gay initiatives on the ballot had come up
short in all but two states. Petitions were submitted in Idaho
and Oregon that appeared on their face to have more than enough
signatures, although the validity of signatures will be
challenged (and an appeal is pending in the Oregon appellate
courts of a trial court decision earlier this year holding that
the proposed ballot measure violates the "single question" rule
and is thus invalid). Anti-gay groups in Arizona and Michigan
claimed that they had abandoned their ballot measures not due to
lack of signatures but rather due to the expectation that their
measures would be tied up in court proceedings. The Arizona
people vowed to file court challenges to existing sexual
orientation discrimination ordinances in Tucson and Phoenix.
Anti-gay groups in Missouri, Nevada, Ohio and Washington State
fell short of the necessary signatures. Courts in Maine and
Florida had previously ruled proposed initiative language failed
to comply with state requirements. The Idaho measure is no
laughing matter: in addition to banning any protection for gays
by the state, it would forbid same-sex marriage or domestic
partnership recognition, forbid public school teachers from
discussing homosexuality as "acceptable behavior," forbid any
state expenditures that could be seen as "accepting or approving"
homosexuality, and limit adult access to library materials about
homosexuality.
The Colorado Supreme Court heard oral argument June 30 in Evans
v. Romer, the state's appeal of a final order by Denver District
Judge Jeffrey Bayless barring Amendment 2 from taking effect.
The Supreme Court previously affirmed a preliminary injunction
that Bayless issued to prevent the amendment from taking effect
pending a ruling on the merits. In his final order, Bayless
found that the state lacked a compelling justification for
banning any civil rights protections for gays. Surprisingly,
news reports indicated that the attorneys were still arguing
about whether sexual orientation is a suspect classification, an
issue not relevant to the theory on which the Supreme Court ruled
on the preliminary injunction or the theory on which Bayless
issued his order. At the insistence of the plaintiffs that
Bayless rule on the issue, he held in dicta that sexual
orientation is not a suspect classification. [Amendment 2
fallout: The ACLU of Colorado announced that it settled a case
where a librarian at the University of Colorado Law School was
forced out of her job after publishing an article about Amendment
2 in the newsletter of the American Association of Law Libraries.
Stacy Dorian, a lesbian, had permission from her supervisor to do
the article, but allegedly not to publish her e-mail address at
the university for those interested in responding to the article.
Under the settlement, Dorian receives $25,000, the reprimand is
removed from her file, and she gets a favorable recommendation
letter for use in her job search. (Rocky Mountain News, July 1.)]
A.S.L.
The Court of Appeals of Oregon ruled May 25, 1994, that a suit by
a resident of Klamath Falls, seeking a declaratory judgment
against the city's elections officer to keep an anti-gay
initiative off the ballot, was premature. Boytano v. Fritz, 128
Or.App. 109, 1994 WL 218098. Plaintiff Janet Boytano relied on
ch. 556, Ore. L. 1993, which provides that no political
subdivision of the state may enact or enforce any charter
provision that "singles out citizens or groups of citizens on
account of sexual orientation," and authorizes a private right of
action for citizens to seek injunctive relief against such
charter amendments. This was intended to render the standard
Oregon Citizens Alliance anti-gay city charter initiatives
unenforceable, as other Oregon courts have held.
The Klamath County Circuit Court, responding to Boytano's suit,
issued a judgment certifying the ballot title of the initiative
and holding that the measure was a proper subject for the ballot.
Boytano appealed that portion of the circuit court's order
holding the measure to be a proper subject for the ballot.
Presiding Judge Rossman found that there was no justiciable
controversy. Boytano had argued that in light of ch. 556, the
gay community should not be required to expend effort in trying
to defeat an unenforceable charter amendment, but Rossman
asserted that this argument "does not state a reason for
concluding on these facts that there is a justiciable controversy
between plaintiff and this defendant. As the elections officer,
defendant's duty in the context of this initiative process would
be to determine whether the measure should be placed on the
ballot, should the appropriate number of signatures be collected.
There is no indication that the measure will ever qualify for the
ballot. The record does not even show whether the sponsors of
the initiative measure are pursuing it. . . A declaration by
this court that the measure is not appropriate for the initiative
process would be binding on no one and would be merely advisory."
Thus, the court reversed the circuit court's ruling on the merits
on the legal sufficiency of the charter measure and ordered the
case dismissed for lack of jurisdiction.
June 20 - 24 saw a trial on the merits challenging Cincinnati,
Ohio's Issue 3, an anti-gay charter amendment approved by the
voters in November 1993. U.S. District Judge S. Arthur Spiegel
enjoined Issue 3 from going into effect pending a decision on the
merits of the challenge filed by the Equality Foundation of
Greater Cincinnati. The trial consisted of a battle of the
experts, with Hunter College Professor Ken Sherrill and Duke Law
School Professor Jerome Culp lined up against Clemson University
Professor David Woodard, Amherst College Professor Hadley Arkes,
and Rockford Institute historian Allan Carlson. The arguments
appeared to focus mainly on whether gays lacked political power
to the degree necessary to justify strict scrutiny of anti-gay
legislative measures under the Equal Protection Clause, which
strikes this observer as largely missing the point of Judge
Spiegel's earlier decision, which appeared to adopt the Colorado
Supreme Court's theory that anti-gay charter amendments violate
the fundamental rights branch of Equal Protection rather than the
suspect class branch. In any event, however Spiegel rules an
appeal is expected, since Christian Right groups are unlikely to
allow any trial ruling against them to sit uncontested. While
the trial proceeded, Ohio election officials were proceeding with
an investigation of alleged election finance law violations by
Issue 3 proponents, including laundering donations through
Coloradans for Family Values (CFV) to avoid Ohio contributor
disclosure requirements. The bulk of funding for Equal Rights
Not Special Rights, the Issue 3 proponents, apparently came
through CFV. After the trial was concluded, Ohio Attorney
General Lee Fisher filed an amicus brief siding with the
opponents of Issue 3, asserting that "this case involves a direct
effort to undermine the fight against discrimination" and that
Issue 3 violates the Equal Protection clause. At the same time,
referring to the Issue 3 litigation, so-called "pro-family"
groups in Ohio announced they were calling off their effort to
put an Issue 3-style measure on the statewide ballot this year.
Instead, they announced, they will concentrate on defeating
candidates for city council elections around the state who are
endorsed by gay rights groups.
Florida Supreme Court Upholds Age of Consent Law; Then Florida
Appeals Court Upholds 150-Year Prison Term for Consensual Sex
With Minor
In Jones v. State, 1994 WL 202545 (May 26), a case consolidating
appeals of several prosecutions for sex with minors, the Florida
Supreme Court unanimously rejected the contention that recent
Florida sexual privacy cases required invalidating the state's
age of consent law, which sets an age of consent of 16 years. In
prior cases, the Florida courts had held that the right of
privacy under the state constitution gave a minor a right to have
an abortion or to refuse medical treatment (see In re T.W., 551
So.2d 1186 (Fla. 1989); In re Guardianship of Barry, 445 So.2d
365 (Fla.App. 1984)), and a trial court derived from that a
principle that 14 year old girls could effectively consent to
have sex with 18 and 19 year old boys. The Supreme Court
rejected this argument. Wrote Justice McDonald: "We are of the
opinion that sexual activity with a child opens the door to
sexual exploitation, physical harm, and sometimes psychological
damage, regardless of the child's maturity or lack of chastity. .
. The State has the prerogative to safeguard its citizens,
particularly children, from potential harm when such harm
outweighs the interests of the individual. . . Although the right
to be let alone protects adults from government intrusion into
matters relating to marriage, contraception, and abortion, the
State `may exercise control over the sexual conduct of children
beyond the scope of its authority to control adults.'. . . T.W.
did not transform a minor into an adult for all purposes."
Justice Kogan concurred in a lengthy opinion citing a variety of
sources from the psychological literature supporting the
necessity of protecting minors from premature sexual contact.
A.S.L.
In Jory v. State, 1994 WL 236385 (Fla. App., June 3), the
defendant Victor Jory appealed from sentences imposed after he
was convicted of crimes arising out of a single episode of
consensual sex with a 15-year old boy, an encounter that was
videotaped by an unknown third person. Jory was sentenced to 150
years in prison, followed by 30 years of probation, an upward
departure from the sentencing guidelines' recommended sentence of
17 to 22 years and the permitted range of 12 to 27 years. The
court of appeals affirmed the sentence, just a week after the
state supreme court's ruling in Jones.
The videotape had been seized by police after a citizen
complained that Jory was selling child-pornography. The boy
testified at trial that he was 16 when he had sex with Jory
(which would have reduced the counts of the indictment from 12 to
2), but the jury believed otherwise. In pronouncing sentence,
the trial court gave a number of reasons for departing upward
from the sentencing guidelines. The appeals court found that one
of those reasons was supported by a preponderance of the
evidence. Specifically, the appeals court agreed that Jory was
not amenable to rehabilitation and posed a danger to society,
basing its view on Jory's comments before the trial court that he
had done nothing illegal and that the case stemmed from a "life-
style persecution, a classic example of homophobia." Jory had
further stated that since the minor male did not feel victimized,
there was no victim and thus no crime. The appeals court,
however, found the facts to show that Jory "preys upon young boys
from broken homes, who lack a father figure in their lives," and
induces them "to participate in his world of perversion and
crime." Thus, the court found Jory to pose a continuing threat
to Florida's young people and affirmed the departure sentence.
A lengthy dissenting opinion, by Judge W.J. Sharp, concluded that
the sole reason for the "gross departure sentence" was that "the
statutory rape was homosexual rather than heterosexual." Sharp
noted that the tape showed no force or violence used by Jory, and
that the boy suffered no apparent physical injury. Sharp further
noted that there was no evidence of premeditation and that there
was no proof of a pattern of conduct with other boys to support
the assertion that Jory "preys upon young boys from broken
homes." In addition, the Florida Supreme Court, noted Sharp, has
held that constitutional considerations generally require that a
lack of remorse cannot constitute a valid reason for an upward
departure, and that this is especially true where the lack of
remorse is inferred from the defendant's assertion of innocence,
State v. Sachs, 526 So.2d 48 (Fla. 1988). K.I.
Britain's House of Lords concurred with the Commons in approving
a bill that lowers the age of consent for gay male sex from 21 to
18, by a vote of 176-113. The age of consent for heterosexual
sex is 16. British law does not specify an age of consent for
lesbian sex, with which the law is only indirectly concerned. A
Reuters account of the debate, published in the June 21 Memphis
Commercial Appeal, indicated that elderly aristocrats expressed
concern about protecting young men who are "vulnerable and
immature" from sexual exploitation. A.S.L.
Minnesota Judge Invalidate Minneapolis Domestic Partnership
Ordinance
Hennepin County, Minnesota, District Court Judge Deborah Hedlund
ruled June 3 in Lilly v. City of Minneapolis, 1994 WL 315620,
that the Minneapolis City Council exceeded its legislative
authority when it enacted a domestic partnership ordinance on
January 25, 1991, establishing a partnership registry system, and
passed resolutions on April 2, 1993, and August 22, 1993, first
providing for reimbursement of health insurance expenses for
domestic partners of the city's employees, and then allowing
employees to add their domestic partners to the city's group
insurance contracts effective January 1, 1994. The plaintiff,
Thomas Lilly, is a Minneapolis taxpayer who objected to
expenditure of municipal tax revenue on the domestic partnership
program and whose standing to bring this action is not discussed
in Hedlund's opinion. Some city employees with domestic partners
who had previously been involved in litigation seeking domestic
partnership benefits that was mooted by the City Council's
actions intervened in the case. Ruling on a motion for
declaratory/summary judgment by Lilly, and a motion for
declaratory judgment by the intervenors, Hedlund granted Lilly's
motion and issued an injunction against operation of the
ordinance and resolutions.
Hedlund asserted that the Council's actions amounted to an
improper attempt to create a new domestic relations status in an
area traditionally within the exclusive province of the state
legislature. Although Minnesota recently enacted a law banning
sexual orientation discrimination in employment, housing, public
accommodations and public services, Hedlund observed that the
state still penalizes consensual sodomy between adults and the
state's marriage laws have been construed to forbid same-sex
marriages. Consequently, Hedlund concluded that the Council's
actions contradicted and violated the state's public policy by
seeking to extend some of the legal entitlements accompanying
marriage to people who were not qualified under state law to
marry. Indeed, she observed that the Council had not extended
financial benefits through an ordinance, but rather through
resolutions, because of doubts about the Council's authority to
do this legislatively in the face of state laws on public
employee benefits that explicitly define eligibility for coverage
as encompassing only spouses and legally-related dependents of
employees.
In explaining why she concluded that the Council lacked this
authority, Hedlund asserted that a primary justification for an
employer to extend benefits to the legal family of an employee
derives from the employee's own legal obligation of support, an
obligation that the domestic partnership ordinance and
resolutions do not purport to impose on domestic partnerships.
While, as a practical matter, many domestic partners have
intertwined household expenses and have voluntarily assumed
support obligations to their partners (and partners' children),
they have no legal obligation to do so, and none is imposed by
the city's actions. This appeared decisive to Hedlund, who also
asserted that providing benefits only to married employees
"strengthens and protects the financial aspect of marriage."
Further, Hedlund concluded that denying domestic partnership
benefits did not constitute sexual orientation discrimination,
because gay employees were being treated the same as unmarried
heterosexual employees. (Any complaints about gays being unable
to marry should be addressed to the state legislature, said
Hedlund.)
Hedlund also focused on two provisions in Minnesota's recently-
enacted gay rights law, which state that the law could not be
construed to "mean the state of Minnesota condones homosexuality
or bisexuality or any equivalent lifestyle;. . . [or] authorize
the recognition of or the right of marriage between persons of
the same sex." To Hedlund, these provisions establish a public
policy against legal recognition of same-sex couples, thus making
the ordinance and resolutions "repugnant" to state public policy,
since the city's actions, in her view, "condone homosexuality."
She found significant that the issue of domestic partnership
benefits was discussed in the state legislature when the gay
rights bill was debated, and that the principal sponsor of the
bill, openly-gay Senator Allen Spear, made clear in statements on
the legislative record that the bill was not intended to require
recognition of domestic partners.
Perhaps the most offensive part of Hedlund's decision is her
discussion of Minnesota constitutional law. Noting that art. 1,
sec. 16, the liberty of conscience provision, "is limited in one
respect -- licentious acts are not excused," she remarked: "The
Court has no knowledge of the Intervenors' sexual behavior, or
the sexual behavior of any other same-sex domestic partners,
aside from the descriptions Intervenors provided. Intervenors
describe themselves as lesbians who 1) would marry their same-sex
partners if the state allowed same-sex marriages, or 2) describe
their domestic partners as spousal equivalents. Sexual relations
are one aspect of homosexuality, and are also an aspect of
marriage. If homosexuality constitutes licentious acts
constrained by art. 1 sec. 16, Defendant does not have authority
to condone it. In any event, the employees affected by
Defendant's resolutions. . . are not entitled to more rights and
privileges than their co-workers by receiving benefits for
persons for whom they are not legally responsible." Thus, to
Hedlund, domestic partnership laws are not a matter of equity in
employee benefits, but rather a case of "special rights" for
"licentious" homosexuals.
Although none of the parties explicitly raised the state penal
code as an issue, Hedlund raised it sua sponte, asserted that
"State sodomy laws do not violate homosexuals' fundamental
rights" with a citation to Hardwick and no discussion of the
state constitution, and asserted that one reason for enjoining
operation of the domestic partnership law is "because the
behavior associated with homosexuality is constrained by the
Minnesota constitution [presumably referring to "licentiousness"]
and the state penal code."
The city and the intervenors announced that they will appeal the
ruling. The City Council voted 9-2 in favor of an appeal on June
14. A.S.L.
Other Domestic Partnership Updates
The State of Vermont has become the first in the nation to extend
domestic partnership health and dental benefits to its public
employees, effective August 1, through an agreement with the
union that represents state workers. To qualify, employees must
file affidavits swearing that they are in an "exclusive, enduring
domestic relationship of at least six months." Shortly after the
Vermont announcement, NY Governor Mario Cuomo announced his
intention to extend benefits to same-sex domestic partners of New
York State employees (including employees of the state university
system) by January 1. Bargaining with unions representing state
employees is to begin shortly. A.S.L.
On May 31, 1994, the California State Assembly became the first
state legislature in the country to pass a state-wide domestic
partnership bill. The bill allows for registration of domestic
partners with the Secretary of State and provides procedures for
termination of a domestic partnership. To file as domestic
partners under the bill the couple must share a common residence,
agree to be responsible for each other's basic living expenses
during the partnership, and be at least 18 years of age. Neither
person may be married or a member of another domestic
partnership, nor may they be related by blood within the degree
that would prevent them from being married. The bill would
extend recognition to domestic partnerships validly entered into
in other jurisdictions. The bill extends three "benefits" to
partnership registration. It requires health facilities to
provide hospital visitation by partners, provides for
participation in conservatorship proceedings by a domestic
partner of the conservatee, and revises the statutory will form
to provide a box that may be checked indicating the testator's
desire to leave her or his principle residence or residuary
estate to a domestic partner. The bill has passed the Senate
Judiciary Committee and is now in the Senate Appropriations
Committee. It is expected that it will be voted on by the Senate
on or around August 8, 1994. P.L.E. * * * The day after the
Assembly passed its partnership registration bill, the Senate
voted down a proposal to allow local government agencies to
include domestic partners in their health insurance programs.
A.S.L.
The Ontario, Canada, parliament defeated a wide-ranging domestic
partnership bill in a second vote on June 9, 68-59. The bill had
narrowly passed on a first vote with many members not voting.
Gay rights activists demonstrated on the streets of Toronto after
the vote, and pledged renewed efforts in the courts. Some
Canadian courts have been very progressive in imposing equality
requirements under the Canadian Charter of Rights, including some
decisions involving partnership benefits. A.S.L.
The San Francisco Board of Supervisors unanimously voted May 31
to exempt domestic partners from real estate transfer taxes if
they end their partnership. Under existing law, marital couples
that divorce are exempted from paying the transfer tax of $2.50
for each $500 in value of property whose ownership changes hands
in connection with the divorce. Domestic partners who register
their partnership with the city will be entitled to the same
exemption of the file a dissolution notice with the city. The
city clerk's office indicated that 2,194 San Francisco couples
are now registered, and that the dissolution rate so far has been
low: about two dozen a year, according to the San Francisco
Examiner (June 1). A.S.L.
The San Diego, California, City Council voted 5-4 on June 2 to
allow city employees to purchase health insurance coverage for
their domestic partners under the city's group employee benefits
program. The benefit will be extended at no cost to the city,
but eligibility to participate in the program is considered
valuable by employees because it provides better coverage at less
expense than individual insurance policies. Councilmember
Christine Kehoe, principal sponsor of the measure, told the San
Diego Union-Tribune (June 3) that what the city had done is to
make it "OK for other employers in San Diego to say this is the
kind of coverage I want to offer to choose, if they need it." In
a related development, a property tax appeals board in San Diego
granted an appeal by Bradley Jordan-Coates for a spousal
exemption from a tax reassessment of property he owned in joint
tenancy with his domestic partner, Kevin Jordan-Coates, who died
September 27, 1992. A heterosexual widow/er who owns property
jointly with a spouse is not subject to such a reassessment when
title changes occur on death, so Jordan-Coates argued that equity
required he and his partner be treated the same way. The board
agreed, overruling city tax assessment personnel, according to a
news release from Lambda Legal Defense Fund, which advised
Jordan-Coates on his appeal. A.S.L.
The Portland, Oregon, City Council unanimously approved domestic
partnership health benefits for unmarried city workers on June 8.
The benefit plan applies to both same-sex and opposite-sex
couples, who must have been living together for at least a year
to qualify. A.S.L.
The U.S. House of Representatives approved a new budget for the
District of Columbia city government on July 13 by only three
votes, and agreement to include a provision banning funding of
domestic partnership benefits for city workers was part of the
compromise deemed necessary to obtain passage of the bill. The
city budget was particularly controversial this year due to a
General Accounting Office audit that was harshly critical of the
city's financial operations. The budget bill now goes to the
Senate. A.S.L.
Donna Freireich, General Counsel of the New York State Insurance
Department, issued an opinion letter June 9 to Joseph Brass,
Director of the New York State Governor's Office of Employee
Relations, stating that insurance companies would not be in
violation of the Insurance Law if they provided domestic
partnership insurance coverage to employers that limited coverage
to same-sex partners. Some employers have reportedly hesitated
to adopt partnership benefits for fear that they would be
required to cover opposite-sex unmarried partners. Freireich
espoused the view that same-sex and opposite-sex unmarried
couples are not "similarly situated," due to the unavailability
of same-sex marriage in New York; thus, it is not "unfair
discrimination" for insurance companies to treat them differently
at the request of employers. A.S.L.
We are informed by a law faculty member that the University of
New Mexico in Albuquerque has adopted a domestic partnership
policy for its employees. The president of the university
adopted the policy with the "tacit" approval of the board of
regents in response to a request by our faculty informant for
tuition remission for his same-sex partner. Tuition remission
and leisure service privileges are already implemented; health
insurance will be available over the summer as details are worked
out. A.S.L.
The San Francisco Sentinel reports that Oregon State University
in Corvallis has agreed to open up married-student housing to
lesbian and gay domestic partners, thus coming into line with
policies at University of Oregon and Southern Oregon State
College. A.S.L.
As of July 1, the 12,000 employees of Advanced Micro Devices, a
high-tech employer based in Sunnyvale, California, with
operations in several other states, will be covered by a
corporate domestic partnership policy covering medical and dental
benefits. According to a report in the Austin, Texas, American
Statesman (June 12), AMD joins over 100 private sector employers
in making such benefits available to employees. (AMD employs
2,000 people in its Austin facility, and an Austin employee is
credited in the newspaper article with having played a major role
in convincing the company to adopt the program.) A.S.L.
The Dayton, Ohio, City Commission passed a policy resolution June
8 stating that "the City of Dayton recognizes that households
within our community include families, adult partners and other
individuals in a committed relationship." The policy addresses
the city's role as an advocate and service provider for families
and children, according to the Dayton Daily News (June 9), and
calls for making Dayton a model employer by expanding city
policies to recognize alternative families. A.S.L.
On May 7, voters in Austin, Texas, amended the city charter to
define "spouse" for personnel purposes as husband or wife as
those terms are used in state or federal law, thus invalidating a
domestic partnership resolution that had been adopted by the
Austin city council in September 1993. On June 15, attorney J.
Patrick Wiseman filed suit on behalf of three couples who had
registered for domestic partnership benefits, alleging that by
withdrawing the benefits the city had committed a breach of
contract and violated provisions of the Texas Insurance Code and
Administrative Code on unfair trade practices and discrimination
on the basis of sexual orientation or marital status. Wiseman
mentions "promissory estoppel" in his complaint as a ground for
requiring the city to maintain the benefits for which the
plaintiffs registered, and, due to the knowing and intentional
character of the revocation of benefits, asserts that the
plaintiffs are entitled to extra damages beyond actual losses
under the Texas Insurance Code and exemplary damages. Bailey v.
City of Austin, No. 9407318 (Travis Co. Dist. Ct.). A.S.L.
The Jewish Board of Family and Children's Services, a large
social services agency in New York City with a substantial
Division of AIDS Services, reached agreement with the union
representing its employees on a new contract that includes
domestic partner health care coverage to same-sex couples in
committed relationships. (Your Law Notes editor is a member of
the agency's Board of Trustees and chair of the Board's Division
of AIDS Services Committee). A.S.L.
National Car Rental has amended its car rental policies to
recognize domestic partners on the same basis as spouses. Prior
to this change, someone renting a car could allow his or her
spouse or employee to use the car, but not an "unrelated"
domestic partner. A.S.L.
Failure to continue a domestic partnership benefits program was
cited by many employees as a reason for quitting their jobs with
The ASK Group, of Mountain View, California, a computer software
firm, after its purchase by Computer Associates, a Long Island,
New York, based company. Most of the major players in the
computer software industry in California have adopted domestic
partnership plans, unlike many computer firms elsewhere in the
country. One former employee, interviewed by The New York Times
(June 30), said, "I'm surprised Computer Associates thought they
could get away with dropping domestic partner benefits when
that's such a competitive issue."
Defying Governor George Allen, the Virginia Housing Development
Authority voted 6-1 on June 22 to allow same-sex couples as well
as unmarried heterosexual couples to jointly obtain state housing
loans. According to Commissioner Albert C. Eisenberg, the
Authority was unconcerned about the nature of people's
relationships. This policy was "about fulfilling our mission to
provide housing to low-income people." (Washington Post, June
22).
The Spanish Supreme Court is considering an appeal of the denial
of domestic partnership recognition for same-sex couples by
Iberia Airlines, according to a report from the International Gay
and Lesbian Human Rights Commission. Article 137.8 of the
collective bargaining agreement covering Iberia employees extends
access to reduced airfares to the unmarried partners of Iberia
employees, but Iberia turned down an application by a gay
employee, maintaining the provision relates only to opposite-sex
couples! A local court in Madrid denied the gay employee's claim
in November 1993. IGLHRC is calling for letters to Iberia
president urging settlement of the case, stressing both the clear
language of the collective agreement and the recent
recommendation by the European Parliament that member states
recognize same-sex domestic partnerships. Letters can be sent to
Dr. Javier Salas, Presidente de la empresa publica Iberia,
Velaquez 130, 28006 Madrid, Spain. A.S.L.
Our report in May about domestic partnership litigation in Israel
was inaccurate. A claim has just been filed on behalf of
university professor Uzi Even and his domestic partner regarding
pension rights, tuition exemption, and a flight ticket for
sabbatical travel. Even is represented by the Association for
Civil Rights in Israel (ACRI), that country's equivalent of the
ACLU. On May 12, the Israel Supreme Court heard its first
argument on a gay rights question: an appeal by El Al Airlines
from a labor court decision holding that Jonathan Danilovitz, a
gay flight attendant, was entitled to have his partner treated as
a spouse for benefits purposes. We received an optimistic report
on the judges' reaction to the argument. A.S.L.
The Swedish parliament approved a law allowing same-sex civil
marriage, but as in Denmark same-sex couples will not be
authorized to jointly adopt children. The law takes effect
January 1, 1995. The Dutch government is considering similar
legislation. But the German parliament voted down a
constitutional amendment that would provide recognition for gay
couples. A.S.L.
Minimalist Federal Rights Bill Introduced
Senator Edward M. Kennedy and Representatives Gerry Studds and
Barney Frank introduced the latest version of a federal gay
rights bill on June 23. S. 2238/H.R. 4636, titled Employment
Non-Discrimination Act of 1994, has the largest level of co-
sponsorship of any gay rights bill yet introduced in Congress --
about 30 in the Senate and more than 100 in the House -- but
there is a simple explanation: it is the most minimalist, bare-
bones gay rights bill ever introduced. The bill prohibits
intentional, open discrimination in employment on the basis of
sexual orientation, which is defined as meaning "lesbian, gay,
bisexual, or heterosexual orientation, real or perceived, as
manifested by identity, acts, statements, or associations." It
extends to all employers covered by Title VII of the Civil Rights
Act of 1964 -- basically, public and private employers with 15 or
more employees -- but broadly excludes the armed forces of the
United States as well as "religious organizations," although it
does apply to "a religious organization's for-profit activities
subject to taxation under sec. 511(a) of the Internal Revenue
Code."
Three sections help to explain the wide (and bipartisan) co-
sponsorship: sec. 4 provides that the bill does not apply to
"the provision of employee benefits to an individual for the
benefit of his or her partner." sec. 5, titled "No Disparate
Impact," provides that a prima facie violation of the statute may
not be established by showing that an employment practice "has a
disparate impact" as that term is used in Title VII, as amended.
sec. 6 specifically outlaws any quotas or preferences on the
basis of sexual orientation; this is in contradistinction to
Title VII, which provides that it may not be construed so as to
require preferences. Thus, sec. 6 in effect outlaws voluntary
affirmative action on the basis of sexual orientation, to the
extent that such affirmative action might include giving a
preference to openly lesbian or gay job candidates for a
particular position.
These sections were included to pick up additional votes in
Congress and forestall anticipated attacks on the bill by
opponents of gay rights, even though they result in a bill that
would actually have little more than symbolic effect for many of
those who encounter anti-gay workplace discrimination.
Similarly, the decision not to cover public accommodations,
public services, education, or housing (all topics of coverage
under federal civil rights laws on race, religion, national
origin, sex, age, and disability) was intended to capitalize on
the widespread support in recent public opinion polls for banning
anti-gay employment policies, and to place the bill squarely in
the jurisdiction of the Senate Labor Committee, where Senator
Kennedy, the chair, will oversee its handling, rather than in the
Judiciary Committee, where Senator Biden, who is not a co-
sponsor, would control the bill's fate. In short, the
Congressional staffers and gay politicos in Washington who were
the drafters decided that it was more important to put together a
bill that had a chance of passage soon than it was to put
together the bill that lesbian and gay Americans need to enjoy
full civil rights as first class citizens. Kennedy announced
plans to hold hearings on the bill later this summer.
Leading mainstream civil rights groups endorsed the bill, and
Coretta Scott King spoke in support at the introduction ceremony
in Washington. Kennedy predicted passage by the Senate, but no
such optimism was expressed in the House. On July 13, former
Senator Barry Goldwater published an op-ed piece in support of
ENDA in the Washington Post.
The full text of the bill was published in BNA's Daily Labor
Report on June 24, and in CCH's Labor Law Reports, New
Developments, para. 5403. A.S.L.
Other Legislative Developments
The Eugene, Oregon, City Council unanimously voted on July 11 to
add the following protected categories to the city's civil rights
law: sexual orientation, income source, families with children,
persons with an expunged juvenile criminal record, persons over
70 years of age. Eugene had been one of the first cities during
the 1970s to ban sexual orientation discrimination, but that
earlier ordinance was repealed in a 1978 referendum. A new anti-
gay group in Eugene announced that it will seek a referendum
repeal of the new law. Because the Council invoked its emergency
powers, the law goes into effect immediately and cannot be
challenged by referendum until May 1996 at the earliest,
according to The Oregonian (July 14).
The Republican caucus of the New York State Senate has again
blocked floor consideration of a bill banning sexual orientation
discrimination that was passed earlier this year by the
Democratic-controlled State Assembly. According to staff for
Senator Majority Leader Ralph Marino, there is no evidence that
gay people need "special protection" under the law.
Reacting to incidents in which multiple copies of The Washington
Blade and a college newspaper were removed from distribution
points by persons who wanted to block circulation of the
publications, the state of Maryland has enacted a law making it a
crime of "newspaper theft" if a person "willingly or knowingly"
takes more than one copy of a free newspaper with the intent of
destroying it or preventing its circulation to others. The
maximum penalty is a $500 fine, 60 days in jail, or both. Gov.
William D. Schaefer signed the bill on May 26, according to The
Washington Blade, its main beneficiary.
City governments in Charlottesville, Virginia, and Oberlin, Ohio,
are considering proposals to ban sexual orientation
discrimination. The Asheville, North Carolina, city council
voted 4-3 in early May to add "sexual orientation" to the city's
non-discrimination law. There was such an uproar in the town
that two weeks later the council voted to delete the list of
protected categories in the law and substitute a prohibition on
discrimination "for any reason that is not related to bona fide
occupational qualifications." Both sides claimed victory! A.S.L.
Federal Litigation Notes
The 9th Circuit Court of Appeals unanimously ruled June 23 that
the religious freedom of Robert L. Vernon, retired Assistant
Chief of the Los Angeles Police Department under Darryl Gates,
was not violated by an investigation by the Police Commission
into the impact of Vernon's religious views on his performance of
official duties. Vernon v. City of Los Angeles, 1994 WL 275539.
In his role as an elder of Grace Community Church in Sun Valley,
Vernon was quoted in an article in Los Angeles Magazine as
condemning homosexuality, depicting police officers as "ministers
of God" and voicing a variety of old-fashioned views about the
role of women in society. This prompted City Council members to
call for an investigation into whether Vernon's views had
affected his official functions, particularly with respect to
women and gays and lesbians, in light of Vernon's administrative
responsibilities for personnel in the department. The
investigation found no problems, but upon its conclusion Vernon
sued under the 1st amendment, claiming that his right to
religious freedom had been abridged. The court found no
abridgement either of the right to free exercise of religion or
any violation of the establishment clause. Vernon had argued
that the investigation both "chilled" his exercise of religion
and, by showing hostility against religion, violated the
Establishment Clause. The court found no substantial burden
imposed where the investigation focused solely on Vernon's
official conduct.
A 9th Circuit panel split over the attempted extortion conviction
of David Peter Marsh. U.S. v. Marsh, 1994 WL 280288 (June 27).
Marsh first met the older John Doe complainant 24 years ago, when
Doe hired Marsh to have sex with him on several occasions. The
two men developed a friendly relationship; instead of payment for
a particular encounter, Doe would "help out" Marsh with small
monetary "gifts" from time to time. Marsh ended up living in Los
Angeles, and Doe had a hotel supply business in San Francisco.
Over the years they settled into a routine of meeting for sex
three or four times a year, with frequent telephone contact and
plenty of small money gifts mailed from Doe to Marsh. The
situation came to the attention of police when relatives of Doe,
now elderly, ill and poverty-stricken, found messages on Doe's
answering machine from Marsh, demanding continued money and
making various threats. Marsh was indicted on counts of
threatening economic harm and physical harm against Doe if he did
not send money to Marsh. The jury ended up convicting Marsh only
of the threat of economic harm (attempted extortion). The trial
judge, finding Marsh's behavior "cruel and ruthless" and noting
several suicide attempts by Doe, imposed a five year sentence, a
significant upward departure from sentencing guidelines for this
offence. Two members of the panel voted to uphold the conviction
but remand for reconsideration of the sentence, pointing out that
some of the incidents relied upon by the judge had occurred prior
to and apart from the telephone calls that were the basis for the
conviction. Dissenting, Circuit Judge Noonan contended that
there was no attempted extortion at all, and that the
"threatening" phone messages were merely part of a "game" between
Marsh and Doe that characterized their whole relationship.
Explained Noonan: "It is a matter of common knowledge that a gay
life style is accepted in public office in San Francisco. Marsh
could not have believed that Doe, a former salesman wise in the
ways of the world, would think hotels doing business with the
public in San Francisco would have discontinued business with Doe
because he had a male friend. . . Doe's vague apprehensions of
what Marsh might say certainly reflected the embarrassment of an
old man brought up in an era when homosexual practices were kept
quiet. Playing on Doe's embarrassment and anxiety do not amount
to threatening fear of economic loss." A.S.L.
The 10th Circuit Court of Appeals ruled June 14 that a police
chief did not have qualified immunity from claims either that he
violated the constitutional privacy rights of a woman employed by
the police department by looking at her confidential medical
records without authorization or that he violated her equal
protection rights by subjecting her to sexual harassment.
Lankford v. City of Hobart, 1994 WL 258485. The court found that
by the date of the police chief's alleged misconduct, there were
10th Circuit precedents providing a sound basis for concluding
that the chief's conduct violated established constitutional
rights, thus removing the qualified immunity defense. (An
interesting twist in the case: one of the allegations against the
chief was that after one of the plaintiffs rejected his sexual
advances, he spread rumors that she was a lesbian, and contrived
to get her medical records in order to find evidence of this.)
A.S.L.
In an unusual refusal to deny an 8th amendment claim by a
prisoner, the 7th Circuit Court of Appeals ruled May 20 in Hunt
v. Washington, 1994 WL 198783, that the district court had
improperly dismissed a claim by Leshurn Hunt that prison
officials violated his 8th amendment rights by requiring him to
remain in a cell with another prisoner who had tried to rape him.
Hunt claimed that his cellmate, Ross, climbed on top of him and
tried to force him to have sex; Hunt repulsed the attack and Ross
pushed the security button in the cell. When guards arrived,
Hunt told them what had happened and asked to be moved to another
cell. Instead, the guard suggested that Hunt remain cellmates
with Ross. When Hunt complained, the guard called other guards
for assistance, and they forced Hunt to remain overnight in the
cell with Ross. The court of appeals found that Hunt's
allegations, if true, "are sufficient to establish that the
officers possessed a total unconcern for Hunt's welfare in the
face of a serious risk of injury to Hunt," and remanded the case
for trial. * * * In a case presenting similar issues, U.S.
District Judge Giles refused to dismiss an 8th Amendment claim by
Delaware County, Pennsylvania prisoner Michael Patterson, who was
forced by another prisoner at razor-blade point to engage in oral
and anal sex while in protective custody. Patterson alleged he
was told by a guard that he was being put in protective custody
(PC) because the guards believed he was gay. He went to the
shower room while in PC and was assaulted by the other inmate,
who was in PC because he was charged with the rape and assault of
a mentally disordered young girl. Giles found that Patterson's
allegations sufficed to make a prima facie case of "deliberate
indifference" to his safety, and also a potential violation of
due process by assigning him to PC solely on the basis of
perceived homosexual orientation, and denied the defendant
guard's motion to dismiss for failure to state a claim. Giles
did dismiss the claims against the prison warden. Patterson v.
Walrath, 1994 WL 328353 (July 11). A.S.L.
U.S. District Judge Griesa (S.D.N.Y.) denied a habeas corpus
petition from Edwin Campos, who was convicted by a jury of
murdering a man with whom he was engaged in a homosexual
relationship. Campos v. Senkowski, 1994 WL 330073 (July 8).
Ronald Oteri was found dead in his apartment with 24 stab wounds
on May 20, 1986. Oteri and Campos were engaged in a relationship
and by early May Campos had begun to stay in Oteri's apartment.
There was testimony by elevator operators in the building and
friends on a different floor with whom Oteri visited on May 19
about Campos' presence in the building at various times that
night when the murder occurred, and friends testified that a pair
of pants found near the body were the pants Campos had been
wearing when they saw him that day. Oteri's body was fully
clothed except for shoes, and there was blood in the bathroom
sink (where water was running when the body was found) and the
bathtub. There is no mention in the opinion of a murder weapon,
finger prints or other forensic evidence linking Campos to the
murder, much less any testimony about a struggle overheard or any
motive for the killing. Campos claimed in his petition that he
was innocent and that the circumstantial evidence did not suffice
to sustain his conviction. Griesa disagreed, stating that "the
conclusion reached by the jury at the trial was an eminently
rational one and cannot be properly set aside by a federal court
in a habeas corpus proceeding." A.S.L.
Pending in U.S. District Court in the District of Columbia is a
"personal discrimination" suit by Patricia Underwood, a
transsexual, against Archer Management Services, Inc., a NYC-
based firm with the a D.C. office. Underwood, who became a woman
about 12 years ago, according to the Washington Post (June 10),
claims she is encountering workplace discrimination because she
looks too much like a man in the eyes of her co-workers and
supervisors. D.C.'s Human Rights Law forbids employment
discrimination on the basis of personal appearance. District
Judge Charles Richey has scheduled a trial in the case, which
will reportedly mark the first attempt by a transsexual to use
the personal appearance law to combat employment discrimination.
A.S.L.
The U.S. Air Force Court of Military Review upheld the sentence
of bad conduct discharge, forfeiture of $543 pay per month for
twelve months, and a reduction in rank imposed on Senior Airman
Adrian Osornio for engaging in consensual homosexual "sodomy"
with a "junior enlisted person" on several occasions in an Air
Force dormitory. U.S. v. Osornio, 1994 WL 247073 (May 11). The
court rejected Osornio's argument that it should disapprove the
bad conduct discharge because he was convicted of offenses that
were consensual in nature, or that there was no victim in this
case, but rather "a willing participant in private homosexual
acts." The court affirmed the sentence "despite an excellent
record of duty performance." Military efficiency triumphs again!
A.S.L.
The U.S. Court of Military Appeals reversed the conviction of
U.S. Army Specialist Patrick A. Grooters, who was convicted of
attempted murder, finding that the trial court had improperly
admitted as evidence some out-of-court statements by the gay man
who was allegedly Grooters' intended victim. U.S. v. Grooters,
1994 WL 247050 (June 8). Grooters and another soldier stationed
in Germany were out celebrating the other soldier's birthday.
They fell in with Mr. Henry, a gay American civilian, and all
went home to Henry's apartment. Henry tried to initiate sex with
Grooters, who claims he brushed him off and went to sleep.
Grooters awakened to observe Henry having sex with the other
soldier. Grooters, allegedly believing that Henry had attacked
the other soldier who was too drunk to resist, was accused of
deciding to kill Henry by setting his apartment on fire after
Henry fell asleep. By the time of trial, Henry was no longer in
Germany and refused to come back for trial. The trial court
admitted Henry's pretrial statements (that the sex with the other
soldier was consensual, and that he had awakened to discover his
sofa on fire). Grooters was convicted of attempted murder and
sentenced to a bad conduct discharge, total forfeiture of
benefits, reduction in rank, and 4 years confinement
(subsequently reduced on review to 3 years). The appeals court
found that admission of Henry's out of court statements was
prejudicial error, since it they could not be seen as statements
against interest as the trial court had treated them, and
remanded the case for retrial. A.S.L.
U.S. Department of Housing and Urban Development Administrative
Law Judge William Cregar has awarded $83,000 in damages to the
estate and partner of a man who died from AIDS; the couple were
evicted from their Walnut Creek, California, apartment prior to
the death of Carlos Guevara. Cregar found that the apartment
manager gave the men a 30-day eviction notice after discovering
Guevara's condition by rummaging through his trash and finding a
note related to his illness. Cregar held the eviction violated
the federal Fair Housing Act, and treated Warren Sanford,
Guevara's domestic partner, as tantamount to a spouse, writing:
"I credit Mr. Sanford's testimony that their emotional dependency
could indeed be likened to a successful marriage." Guevara's
estate will receive $50,000 for emotional distress, Sanford will
receive $33,000 for emotional distress and out of pocket
expenses, and HUD will receive $1,500 in civil penalties. The
decision is subject to review by HUD Secretary Henry Cisneros.
(San Francisco Chronicle, June 24.) A.S.L.
Philadelphia Daily News (June 8) reports that Independence Blue
Cross has applied to the Pennsylvania Insurance Department for
permission to sell domestic partnership health insurance
coverage. The move came in response to a failed effort by
municipal employees to obtain domestic partnership benefits in
Philadelphia. A.S.L.
State Litigation Notes
The U.S. Supreme Court has refused to review the decision by the
New York Court of Appeals in Rent Stabilization Association v.
Higgins, 83 N.Y.2d 156, 608 N.Y.S.2d 930 (1993), thus leaving in
place regulations granting leasehold succession rights to the
domestic partners of rent stabilized tenants in New York. See 62
U.S.L.W. 3823. In a decision applying the regulations in a new
context, New York City Housing Court Judge Laurie L. Lau ruled in
Colon v. Frias, NYLJ, 7/8/94 (Civil Ct., Kings Co.) that two
elderly unrelated women who had lived together in a "sisterly"
relationship for 34 years, qualified for coverage, thus rejecting
the landlord's argument that the women did not qualify because
there was no evidence they were lovers. The women were too poor
to generate the kind of financial arrangements and documentation
normally emphasized in such cases, but they did take vacations
together, pooled their expenses, and treated each other as family
members, found Judge Lau, who noted that the regulations
specifically exclude any requirement that there be a sexual
relationship between the partners. A.S.L.
The New Jersey Supreme Court ruled that bystander liability may
be extended to allow for recovery by a person who was not legally
married to the deceased victim, but who cohabited with and was
engaged to marry him. In Dunphy v. Gregor, 1994 WL 248108 (June
2), the plaintiff witnessed the automobile accident in which her
fiancee was killed on the highway while changing a tire. She
filed a claim for negligent infliction of emotional distress
experienced by a bystander who witnessed the wrongful death of
another person. New Jersey law allows recovery by bystanders who
have a marital or intimate familial relationship with the
deceased. In allowing recovery, the court determined that it was
just as foreseeable that a person in an unmarried, cohabiting
relationship would suffer emotional distress under such
circumstances as it is for a marital partner. While the case
involved a non-gay woman who was engaged to the deceased, the
factors the court set forth for determining that one has standing
to seek such recovery would seem to apply to lesbian and gay
couples, as well as unmarried (but not engaged) non-gay couples.
Among other things, the court instructed that the factors to be
considered include duration of the relationship, degree of mutual
dependence, whether the plaintiff and the deceased cohabited, and
their emotional reliance on each other. Only one justice
dissented, and that was on the ground that there is "no
sufficiently limiting principle in the majority's standard for
deciding who qualifies as an intimate family member." P.L.E.
The California Supreme Court has granted review in Curran v.
Mount Diablo Council, Boy Scouts of America, 23 Cal. App. 4th
1307, 29 Cal. Rptr. 2d 580 (1994), in which a state court of
appeal panel held that the Boy Scouts of America was not required
by California's Unruh Civil Rights Act to allow an openly gay man
to be an adult scout leader. According to the Los Angeles Times
(June 3), the grant of review does not necessarily mean the court
will actually decide the case, however, because it had previously
granted review in another case presenting the question whether a
country club was a "public accommodation" under the Unruh Act,
and the court has suspended proceedings in the Curran case until
it decides the other, after which it may well remand Curran for
reconsideration in light of whatever it says in the course of its
country club opinion. (At the same time, the court also granted
review in another case in which a different court of appeal held
that the Unruh Act required the Scouts to admit to membership
some young atheists who could not subscribe to the God-centered
Scout oath.) A.S.L.
On July 7, San Diego County Superior Court Judge Anthony Joseph
ruled in favor of Chuck Merino, a gay El Cajon police officer who
had been expelled as an Explorer Scout leader. Joseph found that
the Scouts are covered by the Unruh Act, and that they can't
expel a gay person except for misconduct. "Public
acknowledgement of homosexuality does not translate into
`teaching' that homosexuality is proper or improper," wrote the
judge, according to an Associated Press story that ran July 8.
Joseph awarded Merino $5,000 in damages, attorney fees, and a
reinstatement order. The Scouts vowed to appeal. [In another
sidelight on the Scouts issue, the nation's press was full of
articles early in June about a statement by Surgeon General
Elders condemning exclusion of gays from the Scouts, followed by
a statement from the Girl Scouts of America asserting that they
did not discriminate based on sexual orientation, unlike the Boy
Scouts.] A.S.L.
The Georgia Supreme Court ruled June 27 in Franklin v. Hill, 1994
WL 282528, that a Civil War-era seduction statute is an
unconstitutional violation of equal protection. Under OCGA sec.
51-1-16, a father, or in his absence, a mother, can bring an
action for damages against a man who has seduced their daughter
who lives with them. Nancy Franklin sued Andrew Hill, her
daughter's former high school teacher, under this statute. Hill
pointed out that the law only provided damages for seduction of a
daughter by a man, thus leaving out homosexual seduction or
seduction of a son by a woman, and argued that there was no
substantial state interest in providing such a gender-specific
cause of action. The court agreed. In a concurring opinion,
Justice Sears-Collins sought to invalidate the law on the
alternative theory that it was an obsolete law based on sexist
assumptions; her opinion brings a feminist analysis to the case
that is worth reading. A.S.L.
In an unreported opinion, the Arizona Court of Appeals in Tucson
ruled May 5 that there was no violation of public policy when a
private sector employer fires an employee because he is gay.
Blain v. Golden State Container, Inc. (Arizona Republic, June
12). Jeffery Lynn Blain claimed he was fired in 1991 after his
boss learned that he is gay and had filed medical claims in
connection with HIV-related treatment. The company said Blain
was fired because he "wasn't pulling his weight." At trial, the
judge charged the jurors that it is improper to fire an employee
due to AIDS but not improper under Arizona law to fire an
employee because he is gay. The jury decided against Blain, who
appealed claiming the jury instruction was improper and violates
the state constitution's privacy provision. In his opinion for
the court, Presiding Judge Joseph Livermore wrote, "While we are
sympathetic to the proposition that job discrimination on the
basis of sexual preference ought to be proscribed, we can find no
clear expression of public policy to sustain such a judicial
creation. . . Given how the case was tried, there was no chance
that the jury would have found discrimination on the basis of
sexual preference but not on the basis of AIDS," concluded
Livermore, finding that the judge's instruction, if erroneous,
was harmless. Blain is appealing to the state supreme court.
A.S.L.
Washington Blade (July 8) reports that a Montana trial judge
refused to dismiss a pending challenge to the constitutionality
of the state's sodomy law. According to the newspaper report,
the judge said that the law "could certainly be said to foster"
negative reactions towards gay people "by condoning the idea that
homosexuality is criminal and thus in some way immoral." The
newspaper report did not give the name of the case or of the
judge involved. In the same issue, the Blade reports that
Amnesty International has targeted states that maintain anti-gay
sodomy laws -- Arkansas, Kansas, Missouri, Montana and Tennessee
-- for reform efforts. Other U.S. states with sodomy laws ban
anal or oral sex regardless of the genders of participants. The
states listed above ban only same-sex sodomy. A.S.L.
Burlington County, New Jersey, Superior Court Judge Cornelius P.
Sullivan sentenced Joel W. Winrow, Jr., to five years in the
death of James Semptimphelter, a popular high school teacher who
was found dead in his home on March 5. An autopsy showed death
from asphyxiation. Based on bruises on the deceased's neck, the
police put out a story that they believed Semptimphelter, who was
known to be gay, had been accidentally strangled during
consensual sex. They put out this story at a time when nobody
had been arrested. Later, Winrow, who had stolen
Semptimphelter's car, was apprehended and, unsurprisingly, fell
right in with the police department's theory of the case,
claiming that Semptimphelter asked him to tie a noose around his
neck during sex and, when Semptimphelter passed out, Winrow
panicked and stole his car! Thus, both prosecution and defense
took the position that it was an accidental death.
Semptimphelter's surviving partner and some family members
disputed this theory, charging that the police had bungled the
case because Semptimphelter was gay. Semptimphelter's brother-
in-law, Andrew Kopon, told reporters that Jim "was killed by this
individual who showed no respect for life whatsoever. He showed
no remorse for what he did." Greg Caffier, Semptimphelter's
surviving lover, called the prosecution "bigoted and extremely
homophobic," and charged that "their erroneous public statement
gave an alibi to the killer before he was even in the picture,"
calling Winrow a "known hustler and gay basher." At sentencing,
the judge said he was handing down less than the maximum sentence
because Winrow was contrite and that Semptimphelter's "reckless"
behavior contributed to his death. (Philadelphia Inquirer, July
2). A.S.L.
The Buffalo News (June 11) reported that a lesbian couple was
suing Popular Photography magazine for printing a photo of the
couple en route to their commitment ceremony. The photo was
allegedly taken by the driver of their limousine and sold to the
magazine without their permission. One of the women alleges that
she specifically denied a request by the photographer for
permission to publish the photo. The women said that neither
their families nor their co-workers had been aware of their
relationship prior to the publication. A.S.L.
A major child custody battle may be brewing in Buffalo, N.Y.,
between a lesbian co-parent and her murdered ex-partner's
parents, according to the Buffalo News (June 12). Michele
Hennessy was found fatally stabbed April 14 in her home. Pamela
Hennessy was awarded temporary custody by Surrogate Joseph
Mattina of Michelle's three young children. Pamela and Michelle
had been partners for several years, then split up, but Pamela
continued to have contact with the children. Michelle's mother
and sister were unhappy about the temporary custody award. When
police informed Mattina that Pamela was a suspect in the murder
of Michele, Mattina revoked the custody award and placed the
children in the protective custody of Erie County Social
Services, and Michele's relatives have now petitioned to be named
legal guardians and eventually to adopt the children. Pamela
maintains her innocence in the murder. Stay tuned for further
developments. A.S.L.
The Pink Pyramid, a Cincinnati bookstore, has been charged with
obscenity for renting a videotape of Pasolini's classic film
"Salo: 120 Days of Sodom." We recall seeing this film in an art
film house in New York when it was first released many years ago,
and finding it disgusting and not at all erotic despite its
sexual explicitness, but undoubtedly a work of art. If convicted
of the misdemeanor charge, the proprietor, store manager, and
clerk who are each individually charged could be subject to a
variety of fines and prison terms. A.S.L.
Law & Society Notes
A Time Magazine/CNN poll released June 20 showed a jump in
overall regard for lesbians and gay men by the American public:
the percentage polled who found "gay lifestyle" (whatever that
is) "acceptable" went from 35% in April 1976 to 52% in this poll,
while those responding "unacceptable" went from 59% in April 1976
to 39% in this poll. However, almost 2/3 of respondents oppose
both same-sex marriage and allowing gays to adopt children. A
majority support allowing gays to serve in the military, but most
said they would not patronize a gay doctor or dentist, allow
their children to attend a preschool with gay staff members, or
attend a church or synagogue with a gay minister or rabbi.
Things change slowly, after all.
FBI Director Louis Freeh announced the results of 1993 hate crime
statistics reported to the Bureau, from police departments
covering approximately 56 percent of the U.S. population. Anti-
gay crimes constituted 12 percent (955) of the 7,648 total
reported; racially and religiously motivated crimes were more
frequent, with most of the religiously motivated crimes being
anti-Jewish.
Following up on an earlier announcement that 235 members of the
U.S. House of Representatives had signed a pledge eschewing
sexual orientation discrimination in their own office hiring
policies, the Human Rights Campaign Fund announced June 13 that
71 U.S. Senators had signed a similar pledge, including Majority
Leader George Mitchell and -- surprise!! -- Minority Leader Bob
Dole. Who's running for president in 1996?
NY Governor Mario Cuomo nominated Marcy L. Kahn, an openly-
lesbian criminal court judge (serving as an Acting Supreme Court
Justice), to fill a vacancy created on the New York Supreme
Court, New York County, by the recent promotion of Judge Carmen
Ciparick to the Court of Appeals. If she is confirmed by the
Republican-controlled State Senate prior to the Judicial
Nomination Convention in September, Justice Kahn would, under
prevailing practice, be treated as an "incumbent" by the
Democratic Judicial Nominating Convention in September and thus
automatically nominated for a election to a full term in
November. However, the Senate adjourned for the summer without
acting on her nomination, leaving confirmation in doubt. The
Governor also nominated Virginia Apuzzo to be President of the
State Civil Service Commission, his first appointment of an
openly-lesbian or gay person to a cabinet level position.
Attorney General Janet Reno issued an order to the Immigration
Service giving precedential weight to a review panel decision
from four years ago in the case of Fidel Armando Toboso-Alfonso,
a gay Cuban who sought asylum. One of the contested issues in
that case, as in subsequent cases, was whether gays constitute a
particular social group that is subject to persecution.
According to press reports, the effect of Reno's order is to
treat as precedential the finding that gays constitute a social
group; thus, in any particular case, gay asylum applicants can
rely on that finding and their burden of proof will be limited to
the issue whether gays are subject to persecution in the country
which the applicant seeks to leave, thus giving the applicant a
reasonable apprehension of persecution.
The California primary elections in June propelled two openly-gay
candidates into a national spotlight: Tony Miller won a hotly
contested primary to emerge as the first openly-gay Democratic
Party statewide candidate, running for Secretary of State, and
Sheila James Kuehl won another hot primary contest for a State
Assembly district nomination. Before attending law school, Kuehl
won a different sort of national fame as an actress on the
popular Dobie Gillis television series.
The Los Angeles County Bar Association approved a report by its
Ad Hoc Committee on Sexual Orientation Bias, which was released
on June 23. The report provides thorough documentation of the
problems encountered by lesbian and gay lawyers in the legal
workplace. It received prominent play in the Los Angeles Times
and other media. Eric A. Webber, a member of the Ad Hoc
Committee, is happy to field questions about the Report at 213-
683-9541. To obtain a copy of the report, send a self-addressed
10x13 envelope with $1.67 in postage affixed to L.A. County Bar
Association, Sexual Orientation Bias Report, PO Box 55020, Los
Angeles, CA 90055.
Northeastern University (NU) made national news when it formally
expanded its affirmative action policy to efforts to recruit
openly lesbian and gay employees. The Boston Globe (June 28)
reported that Oberlin College in Ohio adopted a similar policy in
February, and Stanford University has an informal affirmative
action policy for gays. The NU policy does not establish a
quota. Query whether NU and Oberlin efforts would be legal under
the bill introduced in Congress on June 23?
The Boston City School District and the Chappaqua, New York,
School District have adopted policies protecting students from
discrimination on the basis of their sexual orientation. The New
York City School District has maintained such a policy for
several years. The Kent School District in Washington State
approved a new collective agreement with the teachers union that
includes a ban on sexual orientation discrimination against
teachers.
The United Way of Greater New Haven, Connecticut, voted to end
its financial support for the Quinnipiac Council of Boy Scouts
because the Scouts dismissed David Knapp, a respected 25-year
volunteer scout leader from Guilford who realized he was gay at
age 50, according to the Boston Globe (July 2). The United Way
organization adopted a policy against supporting organizations
that discriminate on the basis of sexual orientation.
Researchers led by D. Carole Jenny, director of the child-
protection team at Children's Hospital in Denver, sought to
disprove claims by Colorado for Family Values that 50% of child
molestation incidents involve lesbian or gay adults by reviewing
a full year of child abuse cases handled at the hospital. Of 269
cases, 82 percent involved heterosexual men, while only 0.7
percent involved an offender identified in records as a "possible
homosexual" of either gender. The results of the study were
published in the July issue of Pediatrics magazine. In a widely-
published Associated Press story, Jenny was quoted as saying:
"The group that did the study were all people who worked with
abused kids full time. We had a hard time thinking of a case"
where homosexuality was an issue. (See Boston Globe, July 12).
Arizona activists have dropped their same-sex marriage lawsuit.
Pima County, Arizona, Superior Court Judge Bernardo P. Velasco
ruled April 13 in Callender v. Corbett, No. 296666, that Arizona
Rev. Stat. 25-125, which restricts valid marriages to opposite
sex couples, is constitutional. Instead of appealing, the
plaintiffs agreed to abandon their suit for now while trial is
pending in the Hawaii same-sex marriage case. * * * In Hawaii,
Governor John Waihee signed a bill putting the state government
on record as opposing same-sex marriages. A trial will be held
next year in a lawsuit claiming that the state's failure to
provide wedding licenses to same-sex couples violates the state
constitution's equal protection clause. The Hawaii Supreme Court
ruled last year in Baehr v. Lewin, 852 P.2d 44, that the state
must show a compelling state interest in order to win the trial.
In "No Time for a Luau" (The Advocate, July 26, p. 5), Lambda
Legal Defense Staff Attorney Evan Wolfson argues that the new law
is "unlikely to sway the court," and urges pro-gay marriage
activists around the country to help lay the groundwork for
recognition of Hawaiian same-sex marriages in their states.
A.S.L.
The British government is considering proposing amendments to the
Human Fertilization and Embryology Act to bar fertility treatment
and alternative insemination services for unmarried women,
including lesbians. This responds to a media furor about a
"virgin birth" in England; Marilyn Wright, 44, told a newspaper
that she gave birth to a son without every having had sex,
through alternative insemination. Gay rights groups in England
announced their opposition. In Italy, a national advisory panel
opined that lesbians should not be afforded access to alternative
insemination, which should be reserved to married couples or
heterosexual couples in stable relationships. A.S.L.
The International Lesbian and Gay Association voted to expel
pedophile groups from its membership, responding to threats that
ILGA's recently-achieved observer status at the United Nations
could be terminated if the association with pedophiles continues.
The action was taken during an international conference held in
New York City during the Stonewall 25 observances in June. The
resolution aimed at expelling three organizations, including
NAMBLA, passed by a vote of 214-30. A.S.L.
Professional Notes
Deborah Batts was formally installed as a U.S. District Judge,
Southern District of New York, on June 23. Formerly a professor
at Fordham Law School, Judge Batts is a member of LeGaL and of
the Committee on Lesbians and Gay Men in the Legal Profession of
the Association of the Bar of the City of New York. In an
interview with the local CBS-TV affiliate after her installation,
she described herself as a woman, an African-American and a
lesbian, and repeated that description in an interview published
in the New York Law Journal on July 13. Another member of the NY
City Bar Committee in the news: Alexander D. Forger, formerly
chairman of Milbank Tweed Hadley & McCloy in New York and an
award recipient from the National Lesbian and Gay Law Association
for his work in support of lesbian and gay rights within the
American Bar Association, has been elected president of the Legal
Services Corporation. Mr. Forger, one of the organized bar's
most prominent supporters of lesbian and gay rights, played a
major role in persuading Milbank Tweed to adopt a domestic
partnership benefits plan. He is a past president of the New
York State Bar Association.
William B. Rubenstein announced he will leave the ACLU Lesbian
and Gay Rights and AIDS Projects this fall. Rubenstein began
working at the Project as a staff attorney and became Director
when Nan Hunter left to take a full-time teaching position at
Brooklyn Law School. He put himself on the lesbian and gay legal
map by arguing the successful appeal in Braschi v. Stahl
Associates Co., the historic case in which the NY Court of
Appeals recognized a gay male couple as a "family" under rent
control regulations. The ACLU is accepting applications for the
Director position, which should be directed to Steven Shapiro,
ACLU, 132 W. 43rd St., New York, N.Y. 10036.
An individual lawyer can make a difference. LeGaL Member
Theodore R. Bohn, who practices in Vermont as well as New York,
wrote to the Chief Justice of the Vermont Supreme Court a while
back to request that the Court consider amending the state's Code
of Judicial Conduct and Code of Professional Responsibility to
ban sexual orientation discrimination. The Court has now done
so. Indeed, as the Reporter's Notes to the newly promulgated
Judicial Conduct Code of May 1994 (effective September 1)
observe, Vermont has gone further than the ABA Model Code of
Judicial Conduct by including "sexual orientation" in the private
clubs provision, so Vermont judges may not be members of private
clubs that discriminate against gays. (The relevant provision
governing anti-gay bias in the lawyer's Code of Professional
Responsibility is DR 1-102(A)(6).)
AIDS AND RELATED LEGAL NEWS BRIEFS
1st Circuit Affirms Discharge of HIV+ Guardsman
A unanimous panel of the U.S. Court of Appeals, 1st Circuit,
ruled June 30 that no constitutional or other rights were
violated when the Puerto Rico Air National Guard (PRANG)
discharged Oscar Charles from a position as an aircraft
maintenance technician after he tested HIV+. Charles v. Rice,
1994 WL 327912 (revised opinion issued July 14). Charles had
unsuccessfully contended in the district court that his discharge
violated regulations and constitutional rights. Air National
Guard Regulation (ANGR) 39-10 provides: "Members not entitled to
military medical health care who display serological evidence [of
HIV] will be transferred to the Standby Reserves if they cannot
be used in a non-deployable position." After Charles tested
positive, PRANG officials sought a non-deployable position for
him but claimed they could find none and transferred him to the
Standby Reserves. He was then informed that because he was no
longer in the Active Reserves, he was no longer eligible for
continued government employment as an aircraft maintenance
technician, and was laid off. When he applied for disability
benefits, he was turned down on the ground that he was not
disabled. Disgusted, he filed suit against the Air Force.
The court, agreeing with the trial court, found that Charles had
not properly raised or preserved his equal protection argument,
that he had no due process right to a hearing on his medical
status, and that the regulation was valid. Charles tried to
argue on appeal that the way the Air Force handled HIV status was
unconstitutional, because it retained Active Reservists with HIV
in non-deployable positions while discharging those for whom non-
deployable positions could not be found. In essence, Charles
argued, asymptomatic people with HIV were fully capable of
working in deployable positions. The court rejected this
argument, Senior Circuit Judge Bownes writing: "The record
provides ample support for our finding that the Secretary did not
abuse his discretion in adopting the policy underlying ANGR
39-10. The Air Force Ready Reserve (including the National Guard)
makes demands of its members that civilians might not normally
face, and these demands bear on `force readiness.' The National
Guard's `whole reason for being is to be ready to be deployed,
generally outside of the United States.' There is ample support
for the finding that persons with HIV who are asymptomatic are
not deployable because of their restricted capacity to be
immunized, their inability to donate blood, and the
unpredictability of the onset of symptoms. It follows that force
readiness is affected when nondeployable persons staff deployable
positions. No further criticism of the Secretary's decision is
warranted under the circumstances." A.S.L.
Employer Settles HIV-Discrimination Claim After Court Denies
Dismissal Motion Under ADA
In one of the first AIDS-related employment claims scheduled for
trial, U.S. District Judge Ruben Castillo approved a $160,000
settlement agreement that was reached after he had denied the
defendant's summary judgment motion in Smith v. Dovenmuehle
Mortgage Co., 1994 WL 270302 (N.D.Ill., June 13). The
settlement, approved June 22, also provides for reinstatement of
the plaintiff, Shawn Smith, in the same or an equivalent job to
the one he had when he was fired Oct. 6, 1992. The summary
judgment decision dealt with two significant points: whether
someone who has filed a Social Security Disability claim can
nonetheless be considered "qualified" for employment and thus
eligible for ADA protection, and whether an appended state law
claim for emotional distress can be maintained in an AIDS-related
ADA employment discrimination case.
Smith was diagnosed HIV+ in March 1990; by the time of his
discharge, his condition had ripened to full-blown AIDS. He
claimed that he told his immediate supervisor that he had AIDS in
July 1992 and that she then became distant and hostile to him.
The employer denied that the supervisor was aware Smith had AIDS.
Smith's employment was marked by several promotions, but the
employer claimed that Smith's failure to advise his supervisors
of delays on a particular project resulted in economic losses to
the employer. Smith disputed blame for the costs, claiming the
employer knew the project could not be completed by deadline.
After he was discharged, Smith was denied disability benefits
under the employer's benefit program. He applied for Social
Security disability benefits, stating that he was suffering from
AIDS and that his condition made him stop working, and was
granted benefits from Oct. 7, 1992. Smith claims that by Nov.
1992 he had recovered sufficiently to resume work, but that his
termination marred his work record and prevented him from finding
another job in his field. He did obtain employment in March 1994
as an administrator for a non-profit organization.
After receiving a "right to sue" letter from EEOC, Smith filed
suit in January 1994, alleging that the employer fired him and
denied him benefits because he has AIDS, in violation of ADA and
ERISA. Smith also asserted a pendent state law claim of
intentional infliction of emotional distress. Smith sought back
pay, attorneys fees, costs, punitive damages, reinstatement and
an order that the employer not engage in AIDS-related
discrimination in future. The employer, moving for summary
judgment, argued that Smith was estopped from recovering under
ADA because he told the Social Security Administration that he
was "disabled," and also asserted that Smith had failed to allege
sufficiently outrageous conduct by the employer to justify the
emotional distress claim.
Relying on the 7th Circuit's recent decision in Overton v.
Reilly, 977 F.2d 1190 (1992), Castillo ruled that an SSA
disability finding could not be construed as a "judgment" that an
individual is unemployable. Unlike plaintiffs in cases cited by
the employer, Smith had never claimed to the SSA that he was
permanently disabled. Thus, the court found that the doctrine of
"judicial estoppel" did not apply and denied the summary judgment
motion under the ADA.
In addressing the emotional distress claim, Castillo noted that
the issue of whether an employer should be granted summary
judgment on such a claim was a question of first impression in
its own and most other circuits. The court found persuasive the
reasoning of Dutson v. Farmers Ins. Exchange, 815 F.Supp. 349
(D.Or. 1993), holding that the "markedly different versions" of
the events surrounding an HIV+ hemophiliac's resignation
justified denial of the employer's motion, because under the
controverted facts asserted by the parties it was appropriate for
a jury to decide whether the employer's conduct was sufficiently
outrageous for an award of tort damages. Here, the court found
that the employer and Smith offered "startlingly different
versions" of the events surrounding Smith's termination. Thus,
the court concluded there remained a jury question so that
summary judgment was inappropriate.
In agreeing to settle on Smith's terms just days short of the
scheduled trial, the employer insisted that it was not conceding
the correctness of Smith's allegations, characterizing settlement
as a "pragmatic business decision" based on the "high costs and
inherent risks of protracted litigation." The employer insisted
in a press release that it had no knowledge of Smith's disability
prior to termination. See BNA Daily Labor Report No. 121,
6/27/94, A-3. A.S.L. & K.I.
Delaware Court Denies AIDS-Phobia Claim
In Brzoska v. Olsen, 1994 WL 233866 (Del.Super.), the Superior
Court of Delaware dismissed an AIDS-phobia suit of 38 patients
against a now deceased dentist. On March 1, 1991, Dr. Raymond
Owens died of AIDS. Subsequently, the Delaware Division of
Public Health notified his patients of their possible HIV
exposure. Each patient was offered free testing and counselling
for HIV, and all of the patients tested negative. Upon learning
that Dr. Owens died of AIDS, plaintiffs sued his estate, alleging
that Dr. Owens performed invasive procedures upon them while he
had open skin lesions and that his infection control procedures
were deficient, which put them at risk for HIV exposure.
Defendants moved for summary judgment, asserting that no
plaintiff had tested positive for HIV and it had been over three
years since their last possible contact with Dr. Owens.
Defendants also asserted that plaintiffs had not been damaged
because they will not contract AIDS from exposure to Dr. Owens
and that they may not recover simply for the fear of contracting
AIDS. Alternatively, plaintiffs argued that their tort claims
against Dr. Owens (negligence, recklessness, battery, fraudulent
misrepresentation, and false pretenses) contained material issues
of fact which remained unsettled and, therefore, summary judgment
should have been denied. They also argued that they had suffered
a compensable injury; the fear of AIDS is reasonable, it has
caused severe emotional distress, and they are entitled to
recover for their damages. Essentially, plaintiffs' claim was
that they should be able to recover although the risk of
transmission was slight, because the consequences of contracting
the disease are so great.
The court observed that an AIDS-phobia case had not previously
arisen in Delaware, so it reviewed numerous cases from other
jurisdictions. It eventually focused on a Delaware case which
involved fear of contracting cancer, Marganthaler v. Asbestos
Corp. of Am., 480 A.2d 647 (Del. Super. 1984), which involved a
claim by wives of asbestos workers for fear of contracting cancer
as a result of household exposure to asbestos fibers on their
husbands' clothing. Their claim was denied as there was no
assertion by the plaintiffs-wives that asbestos fibers were
physically present in their bodies. The court stated: "In any
claim for mental anguish, whether it arises from witnessing the
ailments of another or from the claimants own apprehension, an
essential element of the claim is that the claimant have a
present physical injury."
Relying on this reasoning, the Delaware court rejected the "fear
of AIDS" cause of action and granted summary judgment for the
defendants. As none of the plaintiffs were able to show actual
exposure to HIV, the court stated that they would not be
permitted to pursue recovery merely for mental distress that they
allegedly suffered while they awaited HIV test results.
This case came on the heels of renewed media speculation about
the Congressional testimony of Kimberly Bergalis, a 23 year-old
Floridian who died of AIDS after claiming that she contracted HIV
through professional care from her dentist. Bergalis went to
Washington to press Congress for mandatory HIV testing and
disclosure of health care workers. An op-ed piece in the New
York Times (July 10) raised new doubts about Ms. Bergalis' claim
that she was a virgin, and thus her dentist was her only possible
contact with HIV. P.T.
AIDS Federal Litigation Notes
The 10th Circuit ruled June 2 that a police officer violated the
constitutional rights of plaintiff A.L.A. when, incident to an
arrest of A.L.A. on a charge of passing a bad check at a shopping
mall, and relying on a piece of paper found in A.L.A.'s wallet,
the officer told a variety of people that A.L.A. was HIV+.
A.L.A. v. West Valley City, 1994 WL 234682. Among those told
were A.L.A.'s sister and his two housemates, a witness at the
store where the arrest was made, and the officer in charge of the
jail. In fact, although he believed based on test results
written on the paper found by the police officer that he was
HIV+, subsequent testing showed that A.L.A. was not infected. At
the time of the police officer's disclosures, A.L.A. had not told
anybody else about his HIV status. The trial court threw out the
case on summary judgment, finding that since A.L.A. was not
actually infected, his privacy rights were not violated, and that
there was no evidence of actual injury. The court of appeals
disagreed, finding that the officer's "divulgences severely
damaged Plaintiff's personal life. His friends and family
shunned him and refused to visit him in jail. His fellow
prisoners and the prison guards subjected him to harassment and
discriminatory treatment as a result of the AIDS label attached
by Defendants. Plaintiff had to undergo treatment for depression
while in jail because of the damage that the broadcasts cost to
his familial relationships. He was particularly distraught
because his relationship with his mother had suffered irreparable
damage." Finding that "the actual validity of the HIV test
results discovered in Plaintiff's wallet is entirely irrelevant
to whether he has a reasonable expectation of privacy in the
results," and that A.L.A. had alleged real injuries for which he
could seek compensation, the court reversed and remanded the case
for trial. A.S.L.
A federal jury in Toledo, Ohio, on June 14 awarded $512,000 to
the estate of Fred Charon, a gay man with AIDS who was denied
emergency medical assistance by Memorial Hospital, in Fremont,
Ohio, when he suffered an allergic reaction to some medication
while on a trip through that state. He died a year later.
Charon's estate, represented by the ACLU, sued under both sec.
504 of the Rehabilitation Act, which forbids discrimination
against PWA's by federal funding recipients, and the Americans
With Disabilities Act. The verdict was based on the
Rehabilitation Act claim; the trial judge reserved judgment on
the ADA claim. The defendants are considering an appeal,
according to news reports. A.S.L.
A 9th Circuit panel unanimously ruled in St. Hilaire v. Lewis,
1994 WL 245614 (June 7), that prison officials did not violate an
inmate's 8th Amendment rights by denying him an HIV test.
Although he conceded he was not a member of one of the identified
"high risk groups," St. Hilaire contended that he had a right to
be tested "due to the overrepresentation of IV drug abusers in
prison; the communal sharing of bathrooms, athletic and
recreational equipment/activities; and the `frequent' blood
spills, cuts and scrapes." The court concluded that since he had
not alleged any actual exposure to HIV, he had not demonstrated a
serious medical need for the test. A.S.L.
AIDS State Criminal Litigation Notes
The New York Court of Appeals, the state's highest court, ruled
unanimously June 30 that a trial judge had not committed an abuse
of discretion in dismissing in the interest of justice criminal
drug sale charges against an HIV-infected defendant. People v.
Herman L. (Anonymous), 1994 WL 287254. The defendant, arrested
for selling a small quantity of heroin on two occasions to
undercover officers, had moved to dismiss citing his HIV-
infection, his voluntary participation in an AIDS research
treatment program as well as in a drug treatment program, his
lack of a prior criminal record, and the argument that he had
sold heroin only to support his own habit and had not been
arrested since the charged conduct. The prosecution opposed the
motion on the ground that defendant had not shown compelling
circumstances justifying dismissal. The judge did not receive
any expert testimony on the defendant's condition, but observed
in its ruling that the defendant's physical condition had
obviously deteriorated between appearances in the case. The
court of appeals held that under these circumstances no abuse of
discretion occurred. "We decline to impose any absolute rule that
an interest of justice dismissal of an indictment based in part
on a defendant's medical condition must always be supported by
expert medical evidence or documentation." A.S.L.
The New Jersey Appellate Division ruled May 11 in State v. E.R.,
1994 WL 240772, that a trial judge had appropriately granted an
amended judgment re-sentencing a previously sentenced defendant
to five years probation instead of seven years in prison.
Defendant E.R. had pled guilty to criminal charges involving
cocaine distribution and possession of pipe bombs. A month after
his prison sentence was rendered, he petitioned for
reconsideration based on medical developments. The trial judge
decided, based on more detailed medical information than had been
available at the original sentencing, that imprisonment would
"entail excessive hardship" for the defendant. The Appellate
Division noted that the record showed serious illness and
repeated hospitalization of the defendant. Dissenting, Justice
Brochin argued that NJ law did not authorize judges to grant
"clemency" in such circumstances. A.S.L.
The North Carolina Court of Appeals rejected the argument that a
mistrial should have been declared when a juror may have read a
newspaper article in which it was reported that the defendant had
AIDS. State v. Degree, 442 S.E.2d 323 (April 19). The defense
brought the existence of the article to the judge's attention
during the trial. The judge asked whether any juror had seen the
article. One juror said he had, but has soon as he realized that
it was about this case he had stopped reading. The defendant
moved for mistrial, arguing that the information that the
defendant had AIDS appeared in the article prior to mention of
the defendant's name, so it was likely that the juror had seen
that and been prejudiced against the defendant. The appeals
court found it was reasonable for the trial judge to conclude,
based on the juror's response, that he "did not read the article
and had formed no opinion that would jeopardize the defendant's
right to a fair trial." A.S.L.
The Texas Court of Appeals upheld a life sentence assessed by a
jury against a man accused of stabbing to death his male sexual
partner. Among other things, the defendant argued on appeal that
the court should not have admitted testimony by his sister that
the defendant had told her that he was present when the murder
took place and "that the victim's killing was related to the fact
that the victim had the AIDS virus," and testimony by a long-time
family friend who testified that the defendant told her in a
phone conversation that he killed the victim because he "had been
smoking rocks and found out that Butch was supposed to be HIV
positive." The appeals court rejected these, as well as a
variety of other arguments related to conduct of the trial. Cruz
v. State, 1994 WL 247473 (June 8). A.S.L.
Johnny M. Webb, who was found to be HIV+ while serving a prison
term in New Jersey in 1988, was sentenced to ten years in prison
for having unprotected sex with three teenage girls from
September 1992 through July 1993. Two of the girls were infected
with HIV as a result, one of whom is pregnant. Webb pleaded
guilty to charges of sodomy, statutory rape, indecent liberties,
and two cases of attempted murder, according to AIDS Policy & Law
(May 27). The prosecutor recommended the ten-year term, even
though a longer one might have been justified, because Webb has
already shown AIDS symptoms. Commonwealth v. Webb (Petersburg
Cir. Ct., 5/11/94). A.S.L.
AIDS State Civil Litigation Notes
The Supreme Court of Appeals of West Virginia ruled June 16 that
the state's Human Rights Commission appropriately reversed and
remanded a decision by HRC Hearing Examiner Richard A. Riffe, in
which Riffe dismissed an AIDS discrimination claim brought by
Robert Cervi after his June 6, 1991, termination of employment
from Kaufman's Department Store, Inc., in Charleston, West
Virginia. May Department Stores Company, D/B/A Kaufman's
Department Store, Inc. v. West Virginia Human Rights Commission,
1994 WL 270291. The defendant claimed Cervi, a managerial
employee, was dismissed for attempting to remove two cosmetic
perfume testers through an employee exit without authorization.
Cervi claimed this was a pretext to get rid of an HIV+ employee.
Kaufman's claimed it first learned of Cervi's HIV status when it
received a copy of the Human Rights Commission complaint. At a
public hearing before Riffe in November, 1992, the parties
deferred closing arguments and agreed on a schedule for
submitting posthearing briefs, to be due January 11, 1993. On
December 7, 1992, however, Riffe mailed to the parties a draft
opinion ruling in favor of Kaufman's, with an accompanying letter
stating: "It occurs to me that it might be economical to go ahead
and release a draft of the order as soon as it's done. This way,
if a non-prevailing party is not going to appeal they can say so
and turn two lawyers' meters off. Also, it will give you all a
good chance to point out where I'm going astray, if I am. I see
nothing in the A.P.A. or the Human Rights Act which would
preclude this approach. Feel free to let me know if you think it
is a bad way to do business." Cervi's counsel objected, pointing
out that the posthearing briefs, not yet filed, were to
constitute the closing arguments on the evidence, especially
concerning the credibility of witnesses about Kaufman's knowledge
or lack of knowledge of Cervi's HIV status. In response, Riffe
directed that posthearing briefs be filed, and subsequently
issued a ruling in favor of Kaufman. Cervi appealed to the HRC,
which found Riffe's conduct inappropriate, vacated his order, and
remanded to a different Examiner for a new hearing. Kaufmann
appealed to the Supreme Court of Appeals, claiming that Cervi's
rights were not prejudiced and Riffe's opinion should be
affirmed. The Supreme Court of Appeals affirmed the Commission's
decision to remand the case to a new Examiner, but ruled that the
new Examiner should attempt to rule based on the first hearing
record, unless the Examiner found it necessary to take more
testimony to resolve credibility issues. Stating per curiam that
it was "not persuaded that Mr. Cervi suffered any prejudice which
would justify a re-taking of the testimony," the court felt that
reassignment to a new Examiner was justified "to eliminate any
danger that the hearing examiner was unable to remain impartial
subsequent to his draft decision." A.S.L.
The Florida Court of Appeals, 3rd District, ruled June 14 in
Gonzalez v. Associates Life Insurance Co., 1994 WL 259571, that a
Florida statute requiring that any AIDS exclusions on insurance
policies "be disclosed and referenced in a conspicuous manner on
the policy data page" was violated where a reference to AIDS
coverage was in the same size and color of type as everything
else on the page. Wilfredo Gonzalez purchased a policy from the
defendant which purported to limit AIDS-related claims that arose
during the first year of the policy. Details of the limitation
were contained on page 24 of the 32 page printed policy. The
data page consisted of a double-spaced typewritten list
containing 23 lines of information; six lines from the bottom, in
the same type as everything else on the page, was listed:
"AIDS/ARC Conditions Limitation: See Page 24 for limitation."
When Gonzalez applied for benefits, he was turned down pursuant
to the limitation and filed suit. The trial judge threw the case
out. The court of appeals reversed, holding: "The fact that this
language is not highlighted, set apart, or emphasized in any way,
renders it not conspicuous," so the limitation is unenforceable.
A.S.L.
The Alabama Court of Civil Appeals ruled June 10 that a mother
who insisted her infant was not HIV+ could be ordered to
cooperate with doctors in administering AZT to the child. A.D.H.
v. State Department of Human Resources, 1994 WL 248155. Despite
doctors' insistence that the child was HIV+, and the failure of
the child to gain weight, the mother refused to believe the child
was actually infected, and the family expressed concerns about
side effects of AZT. The court formulated the issue on appeal as
"whether the State may require a mother to submit her minor child
to treatment for HIV, when the mother objects to that treatment."
The court stated it would normally hesitate to overrule a
parent's reasoned objection to a particular course of medical
treatment for a child. However, "[t]he mother's adamant belief
at trial that her child was not infected with HIV leads us to
conclude that she was incapable of making a well-reasoned,
rational decision regarding treatment that was in the best
interests of her child," so the court affirmed the trial judge's
order. A.S.L.
The Ohio Court of Appeals, Lucas County, ruled May 27 that a
trial judge had inappropriately dismissed an AIDS discrimination
damage claim against a hotel under the Toledo AIDS Discrimination
Ordinance. Phillips v. Mufleh, 1994 WL 236209. Eugene Phillips
charged that he was locked out of his room and denied continued
accommodation at the hotel when the owner learned that Phillips
had AIDS, in direct violation of the ordinance's provisions
barring operators of housing facilities or other businesses from
discriminating against people with AIDS. The trial judge threw
out the case, contending that the ordinance was limited to
injunctive relief, which Phillips had not requested, and that
Phillips' damage and attorney fee claims were too vague. The
appeals court found that Phillips had in fact sought injunctive
relief in his complaint, but in any event "was an aggrieved
person under the statute at issue" and need not have alleged
precise financial damages in order to be allowed to proceed under
the statute; the court also commonsensically observed that a
precise attorney fee claim can't be calculated until the action
is concluded! A.S.L.
An HIV+ person may maintain an action in libel against a
newspaper which erroneously reports that the person has AIDS, the
New York State Supreme Court has ruled. Cruz v. Latin News
Impacto Newspaper, NYLJ, 6/7/93, p. 23 (Sup.Ct., Bronx Co.).
Plaintiff was HIV+ when the defendant published an article
saying, among other things, that Plaintiff had AIDS. Justice
Crispino noted that such erroneous reporting could be deemed a
substantial falsity, for purposes of a libel suit. Plaintiff had
submitted several articles from medical journals attesting to an
awareness among the general public of the difference between a
person who is HIV+ and one who has full-blown AIDS. "Public
thought and reactions toward persons who are HIV-infected but
otherwise healthy . . . and towards AIDS patients with death
imminent, necessarily differs." It was no defense for the
newspaper that plaintiff would be deemed to have AIDS under a
revised standard. Under the accepted standard at the time of
publication, plaintiff would not be deemed to have AIDS. Justice
Crispino also noted that the newspaper article was not protected
by either the federal or New York Constitutions, that there was
no "strong public interest in knowing the identity of someone who
is HIV positive or suffering from AIDS," and that New York State
recognizes no free speech issue in revealing the identity of such
a person. The defendant sought summary judgement against a
statutory invasion of privacy claim, on the theory that the
subject matter article, dealing with local housing for persons
with AIDS, was of legitimate public interest. However, Justice
Crispino preferred to try the issue of whether the article was
"newsworthy" or merely an "advertisement in disguise". There was
language in the article which read "It is comforting to know that
. . . there is a real estate company that is fighting to provide
a roof over the heads of those suffering from AIDS." R.B.
The Missouri Court of Appeals, Eastern District, upheld dismissal
of a slander complaint involving AIDS rumors in Blake v. May
Department Stores, 1994 WL 226818 (May 31). Blake claimed that
he was defamed when a fellow employee complained to his
supervisor that there was a rumor that Blake had HIV or AIDS and
the employee was uneasy about wearing the same headset as Blake;
the supervisor then consulted the V.P. for Human Resources about
how to handle the matter and ultimately advised Blake about the
rumor and his conversation with Human Resources. The trial judge
dismissed the case on May's claim of "intra-corporate immunity,"
i.e., that because all of these statements took place within the
company, there was no "publication" of any defamatory statement.
(Blake alleges that he is not HIV+ and does not have AIDS.)
Affirming, the court of appeals pointed out that the supervisor
did exactly what one should do in the circumstances: consult
Human Resources and then go to the employee in question to deal
with the rumor. A.S.L.
Gay & Lesbian Advocates & Defenders (Boston) filed suit on behalf
of Richard Cloutier against Delta Airlines, alleging a violation
of the Air Carrier Access Act when Delta agents removed Cloutier
from a plane because of an HIV-related skin condition. Cloutier
v. Delta Airlines, U.S. Dist. Ct., Mass. (filed 7/13/94).
Although Cloutier's condition presented no risk to anyone on the
plane, Delta's agents would not allow him to fly with a visible
skin condition, and refused to hold the plane for him while he
ran to a gift shop to purchase a long-sleeve shirt. Thus covered
up, he was allowed on a subsequent flight. Cloutier charges
unlawful disability discrimination under the federal act, and
appends a tort claim for infliction of emotional distress. He is
represented by Bennett H. Klein on behalf of GLAD. A.S.L.
Prof. Mark Wojcik of John Marshall Law School has filed
complaints against Michael's Funeral Home in Schaumburg, Ill., on
behalf of the friend of a person who died from AIDS, complaining
about the funeral home's insistence that the deceased must be
embalmed, even though the family had planned a closed-coffin
funeral. Complaints were filed with the Illinois Dept. of Human
Rights, the U.S. Department of Justice, the Federal Trade
Commission, and the Illinois Department of Professional
Regulation, with plans for a lawsuit to be filed in Cook County
Circuit Court. The complaints assert that the funeral home is
engaging in discriminatory conduct by requiring unnecessary
embalming in AIDS cases. The Chicago Tribune (July 14) provided
detailed coverage of the case. A.S.L.
HIV Transmission Litigation Bulletins
The D.C. Circuit Court of Appeals ruled in Nelson v. American Red
Cross, 1994 WL 283004 (June 28), that the son of a man who had
died in 1991 from AIDS stemming from a 1985 blood transfusion
could not bring a "survival action" on his deceased father's
behalf in 1992. Affirming a summary judgment ruling for the
defense, the court held that the statute of limitations started
running when the father learned in 1986 that he was HIV+. In the
same decision, the circuit court reversed the trial court's
refusal to dismiss the son's alternative wrongful death action.
Since the statute of limitations on the father's right of action
had run by the time the son filed in 1992, the circuit court held
that the son's action was barred, rejecting the son's argument
that the one-year statute of limitations under the Wrongful Death
Act (D.C. Code sec. 16-2702) meant that he could file suit up to
one year after his father's death.
Reversing a grant of summary judgment, the 9th Circuit Court of
Appeals ruled in Katz v. Children's Hospital of Orange County,
1994 WL 284571 (June 29), that a California medical malpractice
action filed on behalf of a minor in a transfusion AIDS case
accrues at the date of "injury" as defined by the California
courts, not on the date of the "wrongful act" giving rise to the
injury, and that minors are subject only to a three-year
limitation period after discovery of the injury. In this case, a
1983 transfusion when the plaintiff was four years old allegedly
transmitted HIV, but the injury was not discovered until a 1988
blood test, and suit was filed two years and ten months later.
The trial judge had dismissed the suit, finding that the statute
of limitations is only tolled until one year after discovery of
the infection.
U.S. District Court for the Eastern District of Pennsylvania
ruled on a variety of motions in pending transfusion-AIDS
litigation arising out of a 1984 open-heart surgery, on July 6.
McKnight v. American Red Cross, 1994 WL 323861. Perhaps the most
unusual aspect of the motions was that the plaintiffs, who had
sued the doctors, hospital, and Red Cross, moved to dismiss Red
Cross as a defendant in order to get the case sent back to state
court. Judge Waldman granted that motion and remanded to state
court, after dismissing various aspects of the complaint on
motion of some of the defendants. Factually, the case is
interesting because of the peculiar machinations of the various
doctors to avoid being the one to tell the McKnights that Mr.
McKnight had been potentially exposed to HIV as a result of the
transfusion during surgery, resulting in a delay of many months
from the time Red Cross notified the hospital of the possibility
until the time that McKnight actually got tested. However, the
court found that at the time (1987) there was no basis for saying
that the delay prevented McKnight from obtaining any relevant
treatment for then-asymptomatic HIV infection, and there is no
evidence that Mrs. McKnight was exposed to HIV as a result.
A New Jersey Superior Court jury in Bergen County awarded
$405,000 in compensatory damages and $165,000 in interest to
William Snyder, who contracted HIV as a result of blood
transfusions during surgery in 1984, according to an Associated
Press story. The damages were awarded against the American
Association of Blood Banks, on a claim that the Association set
inadequate blood screening standards for blood banks at a time
when it was well-established that a blood-borne virus was
implicated in AIDS but a direct screening test did not exist.
(The FDA licensed the ELISA antibody test early in 1985.) AABB
argued that various surrogate tests were not reliable enough to
warrant their use as of 1984, but the jury evidently disagreed.
Snyder v. American Association of Blood Banks (N.J. Super. Ct.,
June 24). A.S.L.
AIDS Law & Society Notes:
Reminder: On July 26, the employment title of the Americans With
Disabilities Act goes into effect for businesses with 15 to 24
employees. For the past two years, the employment title has
covered only businesses with 25 or more employees.
On July 8, Kristine Gebbie announced her resignation as national
AIDS policy coordinator. Gebbie had been under heavy fire from
some AIDS advocacy groups, which were disappointed that President
Clinton had not appointed a more high-power person or endowed the
position with more authority.
Shaun Mellors, an HIV+ swimmer from Cape Town, South Africa,
decided to attend Gay Games IV in New York City without applying
for the special waiver from the ban on HIV+ visitors announced by
Attorney General Reno in May. He told U.S. Embassy officials
that he had tested negative for HIV and was admitted to the U.S.
Then, once in New York, he announced that he was HIV positive.
An Immigration Service spokesperson told reporters that Mellors
faced deportation because he obtained his visa fraudulently, but
stated uncertainty about what action they would take, in light of
the short duration of the Games. See Washington Post (June 22),
p.C2.
Under a new law signed by California Governor Pete Wilson on July
1, convicted rapists will be subjected to mandatory HIV testing;
prosecutors are to refer sexual-assault victims to health
professionals to learn the test results and receive counseling.
The law was passed in response to the case of Monette Johnson,
who was convicted of a string of sexual assaults committed in
1991 and 1992 and was subjected to HIV testing in prison. Under
California law, the prison could test him but the assault victims
were not entitled to learn the results of the test; however,
several of the victims were advised to obtain HIV testing.
A.S.L.
The San Francisco Health Commission renewed a contract with
Catholic Charities (CC) after being assured that CC will comply,
more or less, with a requirement to certify that there is gay
representation on its board, according to the San Francisco
Chronicle of June 22. CC will send a letter affirming that there
are gays on the board, without naming them. CC's Executive
Director, Frank Hudson, said the letter will be truthful "because
some members have voluntarily told him privately that they are
homosexual." A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
ANNOUNCEMENTS
Lesbian, gay and bisexual lawyers in North Carolina recently met
in Durham to form a statewide association, now known as GALBLONC
(Gay, Lesbian and Bisexual Lawyers of North Carolina). GALBLONC
plans to publish a directory, form a speakers' bureau, and
provide legal advice and assistance to the community. For more
information, contact C.J. Reilly at 919-929-4984, or Ed Farthing
at 704-322-4663.
A full schedule of programs of gay/lesbian interest awaits
attorneys attending the ABA Annual Meeting in New Orleans. On
Friday, Aug. 5, there will be a 6:00 reception at which the
Allies for Justice Awards for this year will be presented. On
Aug 8., the Section on Individual Rights and Responsibilities
presents a 2 p.m program titled "Breaking Down Barriers:
Overcoming Discrimination in the Legal Profession for Attorneys
with Disabilities and Lesbian and Gay Attorneys" and a 4 p.m.
program titled "AIDS and Tuberculosis in Congregate Settings."
The IRR Section is also co-sponsoring with other ABA sections the
following programs of interest: Aug. 5, 2:30 p.m.: "Gay and
Lesbian Custody and Visitation Issues." Aug. 7, 2 p.m.:
"Legislating Equal Rights for Lesbians and Gay Men." For more
information, call the IRR Section at 202-331-2279.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Angelari, Marguerite, Hate Crime Statutes: A Promising Tool for
Fighting Violence Against Women, 2 Am. U. J. Gender & L. 63
(Spring 1994).
Badgett, M.V. Lee, Equal Pay for Equal Families, 80 Academe No.
3, 26 (May-June 1994) (domestic partnership benefits in
academia).
Brownstein, Alan E., Hate Speech and Harassment: The
Constitutionality of Campus Codes That Prohibit Racial Insults, 3
Wm. & Mary Bill of Rts. J. 179 (Summer 1994).
Burke, Marc, Homosexuality as Deviance: The Case of the Gay
Police Officer, 34 Brit. J. Criminology 192 (Spring 1994).
Burr, Chandler, Friendly Fire: An Inside Look at the Political
Maneuvering That Led to Clinton's Policy on Gays in the Military,
14 California Lawyer No. 6, 54 (June 1994).
Chamallas, Martha, Jean Jew's Case: Resisting Sexual Harassment
in the Academy, 6 Yale J. L. & Feminism 71 (Winter 1994).
Colker, Ruth, A Bisexual Jurisprudence, 3 L. & Sexuality 127
(1993).
Collins, Ronald K.L., and David M. Skover, The Pornographic
State, 107 Harv. L. Rev. 1374 (April 1994).
Davis, Peggy Cooper, Contested Images of Family Values: The Role
of the State, 107 Harv. L. Rev. 1348 (April 1994).
Dohrn, Beatrice, Keynote Address, 3 Wm. & Mary Bill of Rts. J.
285 (Summer 1994) (Symposium on Gays, Lesbians, and the Meaning
of Family).
Dressel, Paula, Bernadette Weston Hartfield & Ruby L. Gooley, The
Dynamics of Homosexual Reproduction in Academic Institutions, 2
Am. U. J. Gender & L. 37 (Spring 1994).
Fahleson, Mark A., The Public Policy Exception to Employment at
Will - When Should Courts Defer to the Legislature?, 72 Neb. L.
Rev. 956 (1993).
Federle, Katherine Hunt, Looking for Rights in All the Wrong
Places: Resolving Custody Disputes in Divorce Proceedings, 15
Cardozo L. Rev. 1523 (March 1994).
Finnis, John M., Law, Morality, and "Sexual Orientation", 69
Notre Dame L. Rev. 1049 (1994) (Anti-gay expert witness in
Colorado Amendment 2 trial explains why society should be allowed
to discourage homosexuality. Not for the faint of heart.)
Flaks, David K., Gay and Lesbian Families: Judicial Assumptions,
Scientific Realities, 3 Wm. & Mary Bill of Rts. J. 345 (Summer
1994).
Gaumer, Craig Peyton, Punishment for Prejudice: A Commentary on
the Constitutionality and Utility of State Statutory Respnoses to
the Problem of Hate Crimes, 39 S. Dak. L. Rev. 1 (1994).
Greenawalt, Kent, Religious Grounds in Liberal Politics, 12 Crim.
Justice Ethics No. 2, 3 (Summer/Fall 1993).
Holmes, Gilbert A., The Tie That Binds: The Constitutional Right
of Children to Maintain Relationships with Parent-Like
Individuals, 53 Md. L. Rev. 358 (1994).
Hovermill, Joseph W., A Conflict of Laws and Morals: The Choice
of Law Implications of Hawaii's Recognition of Same-Sex
Marriages, 53 Md. L. Rev. 450 (1994) (analysis of whether Hawaii
same-sex marriages would receive "full faith and credit" in other
states).
Honigsberg, Peter Jan, Marilynn Tham and Gary Alexander, When the
Client Harasses the Attorney -- Recognizing Third-Party Sexual
Harassment in the Legal Profession, 28 U. San Fran. L. Rev. 715
(Spring 1994).
Icenogel, Daniel L., Sentencing Male Sex Offenders to the Use of
Biological Treatments: A Constitutional Analysis, 15 J. Legal
Med. 279 (June 1994) (chilling; recall that gay sex is still
illegal in over 20 states).
Malamut, Michael E., Proposal for the Revision of Archaic
Statutes Implicating Private Consensual Noncommercial Adult
Sexual Conduct, 3 L. & Sexuality 45 (1993) (Focuses solely on
Massachusetts laws).
Nunn, The Honorable Sam, The Fundamental Principles of the
Supreme Court's Jurisprudence in Military Cases, 29 Wake Forest
L. Rev. 557 (1994) (Sen. Nunn presents his case for keeping gays
out, without ever mentioning homosexuality!).
O, Maria de la, Profile: Evan Wolfson: The Fight for Same-Sex
Marriage, 21 Hum. Rts. (ABA) No. 3, 22 (Summer 1994).
Perlin, Michael L., Hospitalized Patients and the Right to Sexual
Interaction: Beyond the Last Frontier, 20 N.Y.U. Rev. of L. &
Soc. Change 517 (1993-94).
Pershing, Stephen B., "Entreat Me Not to Leave Thee":Bottoms v.
Bottoms and the Custody Rights of Gay and Lesbian Parents, 3 Wm.
& Mary Bill of Rts. J. 289 (Summer 1994) (author represents
lesbian mother in custody battle).
Rhode, Deborah L., Feminism and the State, 107 Harv. L. Rev. 1181
(April 1994).
Rubenstein, William, The Stonewall Anniversary: 25 Years of Gay
Rights, 21 Hum. Rts. (ABA) No. 3, 18 (Summer 1994).
Schlueter, David A., Gays and Lesbians in the Military: A
Rationally Based Solution to a Legal Rubik's Cube, 29 Wake Forest
L. Rev. 393 (1994).
Skinner, Gwynne L., Intimate Association and the First Amendment,
3 L. & Sexuality 1 (1993).
Stychin, Carl F., Inside and Out of the Military, 3 L. &
Sexuality 27 (1993).
Titus, Herbert W., Defining Marriage and the Family, 3 Wm. & Mary
Bill of Rts. J. 327 (Summer 1994) (seeking "balance," journal
symposium on gay families includes this diatribe by Christian
fundamentalist about how traditional family structure is God-
given and inviolable; amusing and horrifying reading).
Turner, Ronald, Hate Speech and the First Amendment: The Supreme
Court's R.A.V. Decision, 61 Tenn. L. Rev. 197 (Fall 1993).
Wells, N. Douglas, Thurgood Marshall and "Individual Self-
Realization" in First Amendment Jurisprudence, 61 Tenn. L. Rev.
237 (Fall 1993).
Wriggins, Jennifer, Kinship and Marriage in Massachusetts Public
Employee Retirement Law: An Analysis of the Beneficiary
Provisions, and Proposals for Change, 28 New Eng. L. Rev. 991
(Summer 1994) (proposes inclusion of domestic partners).
Student Articles:
Allen, Brent Hunter, The First Amendment and Homosexual
Expression: The Need for an Expanded Interpretation, 47
Vanderbilt L. Rev. 1073 (May 1994).
Carson, Brad Rogers, Labor Law: Tate v. Browning-Ferris
Industries: Oklahoma Creates a Common Law Action for Employment
Discrimination, 46 Okla. L. Rev. 557 (Fall 1993).
Catlin, Scott J., A Proposal for Regulating Hate Speech in the
United States: Balancing Rights Under the International Covenant
on Civil and Political Rights, 69 Notre Dame L. Rev. 771 (1994).
Cooper, Melinda S., Equal Protection and Sexual Orientation in
Military and Security Contexts: An Analysis of Recent Federal
Decisions, 3 L. & Sexuality 201 (1993).
Coury, Christopher A., Direct Democracy Through Initiative and
Referendum: Checking the Balance, 8 Notre Dame J. L. Ethics &
Pub. Pol. 573 (1994) (argues for mechanism to screen out
unconstitutional ballot proposals -- such as Colorado Amendment 2
-- prior to elections).
Deitchman, David, Limits on the Right to Hate: A Look at the
Texas Hate Crime Act, 46 Baylor L. Rev. 399 (Spring 1994).
Dobash, Tanya J., Physician-Patient Sexual Contact: The Battle
Between the State and the Medical Profession, 50 Wash. & Lee L.
Rev. 1725 (Fall 1993).
Durkin, John E., Reproductive Technology and the New Family:
Recognizing the Other Mother, 10 J. Contemp. Health L. & Pol. 327
(Spring 1994).
DuRocher, Robin, Balancing Competing Interests in Post-Placement
Adoption Custody Disputes: How Do the Scales of Justice Weigh the
Rights of Biological Parents, Adoptive Parents, and Children?, 15
J. Legal Med. 305 (June 1994).
Fogle, Randy M., Is Calling Someone `Gay' Defamatory?: The
Meaning of Reputation, Community Mores, Gay Rights and Free
Speech, 3 L. & Sexuality 165 (1993).
Fotopoulos, Spiro P., The Beginning of the End for the Military's
Traditional Policy on Homosexuals: Steffan v. Aspin, 29 Wake
Forest L. Rev. 611 (1994).
Ho, Lisa S.L., Substantive Penal Hate Crime Legislation: Toward
Defining Constitutional Guidelines Following the R.A.V. v. City
of St. Paul and Wisconsin v. Mitchell Decisions, 34 Santa Clara
L. Rev. 711 (1994).
Hurdle, Melody L., R.A.V. v. City of St. Paul: The Continuing
Confusion of the Fighting Words Doctrine, 47 Vanderbilt L. Rev.
1143 (May 1994).
Leddin, Brian J., First Amendment -- Free Speech -- Penalty
Enhancement Statutes That Increase the Sentence for Criminal
Conduct Motivated by Bias Toward the Victim Are Constitutional, 4
Seton Hall Const. L. J. 761 (Spring 1994).
Leveno, Elizabeth A., New Hope for the New Federalism: State
Constitutional Challenges to Sodomy Statutes, 62 U. Cin. L. Rev.
1029 (Winter 1994).
McQueen, Molly A., Regulating Attorney-Client Sex: The Need for
an Express Rule, 29 Gonzaga L. Rev. 405 (1993/94).
Moore, Ellen S., Refugee Determinations: A Consolidation of
Approaches to Actions by Nongovernmental Forces, 33 Va. J. Int'l
L. 927 (Summer 1993) (does not discuss gay cases, but provides
useful framework for analysis of recurring gay issue).
Mozingo, James Flynn, The Confounding Prong of the Harlow v.
Fitzgerald Qualified Immunity Test: When is a Constitutional
Right Clearly Established?, 17 Am. J. Trial Ad. 797 (Spring
1994).
Note, Looking It Up: Dictionaries and Statutory Interpretation,
107 Harv. L. Rev. 1437 (April 1994) (although it focuses on U.S.
Sup.Ct. cases, and thus does not deal with numerous cases where
dictionaries are used to defeat gay rights arguments, such as the
infamous gay marriage cases of the 1970s, this Note provides a
useful critique of the role of dictionaries in statutory
interpretation).
Owen, Stephanie J., Davis v. Davis: Establishing Guidelines for
Resolving Disputes Over Frozen Embryos, 10 J. Contemp. Health L.
& Pol. 493 (Spring 1994).
Padgett, Barbara K., Illegitimate Children Conceived by
Artificial Insemination: Does Some State Legislation Deny Them
Equal Protection Under the Fourteenth Amendment?, 32 U.
Louisville J. Fam. L. 511 (1993-94).
Perkins, Amy, Jacobson v. United States--Entrapment Redefined?,
28 New Eng. L. Rev. 847 (Spring 1994).
Rankin, Lori J., Ballot Initiatives and Gay Rights: Equal
Protection Challenges to the Right's Campaign Against Lesbians
and Gay Men, 62 U. Cin. L. Rev. 1055 (Winter 1994).
Resler, Brian, Hate Crimes -- New Limits on the Scope of First
Amendment Protection?, 77 Marquette L. Rev. 415 (Winter 1994).
Roberts, Eric, Heightened Scrutiny Under the Equal Protection
Clause: A Remedy to Discrimination Based on Sexual Orientation,
42 Drake L. Rev. 485 (1993).
Roberts, Eric, Societal Prejudice Versus the Constitutional
Guarantee of Equal Protection, 3 L. & Sexuality 139 (1993).
Rommel, Sean F., The Arkansas Obscenity Doctrine: Its
Establishment and Evolution, 47 Ark. L. Rev. 393 (1994).
Simerman, Anne E., The Right of a Cohabitant to Recover in Tort:
Wrongful Death, Negligent Infliction of Emotional Distress and
Loss of Consortium, 32 U. Louisville J. Fam. L. 531 (1993-94).
Wesson, Marianne, A Case of Clothing and Smell Obsession in a
Bisexual Adult Woman, 2 Am. U. J. Gender & L. 201 (Spring 1994)
(creative writing).
Zamansky, Stephen, Colorado's Amendment 2 and Homosexuals' Right
to Equal Protection of the Law, 35 Boston Col. L. Rev. 221
(December 1993).
Specially Noted:
The Winter 1994 issue of Law Library Journal (vol. 86, no. 1)
contains a lengthy bibliography titled Sexual Orientation and the
Law: A Selective Bibliography on Homosexuality and the Law, 1969-
1993. This publication is intended to assist law librarians in
selecting materials to provide resources to researchers on sexual
orientation law issues.
Leading constitutional scholar Kenneth Karst's new book, Law's
Promise, Law's Expression: Visions of Power in the Politics of
Race, Gender and Religion (Yale Univ. Press, 1993), provides a
theoretical basis for evaluating the motivation behind such
phenomena as Colorado Amendment 2 and Cincinnati Issue 3.
Recommended summer reading (but perhaps not for the beach).
In her May 27 column in the Washington Blade, lesbian activist
attorney Arlene Zarembka comments on J.E.B. v. Alabama, 114 S.Ct.
1419 (April 19), in which the Supreme Court held that peremptory
jury challenges based on sex violate the Equal Protection Clause.
Zarembka observes that amid the strong language in Justice
Blackmun's opinion rejecting sex discrimination, there is a
disturbing note: Blackmun wrote that peremptory challenges may
still be used to exclude "any group or class of individuals
normally subject to `rational basis' review." Zarembka fears
that later courts may jump on this dictum to conclude that
discrimination against lesbians and gay men -- not yet found to
be a "suspect classification" by the Court -- is permissible
under the Equal Protection Clause.
In its June 13 issue The New Yorker published a lengthy article
by James B. Stewart, titled "Annals of Law: Gentleman's Agreement
(p. 74). This is a thorough case study of the employment
problems of Daniel C. Miller, a gay man who was fired by an
accounting firm in Harrisburg, Pennsylvania, because of his gay
rights activities, and then sued by his former employer when he
set himself up in business and attracted work from his former
clients. The June 20 issue included interviews with Yale
historian John Boswell about his new book on religious same-sex
"marriage" in medieval Europe, and with LeGaL member Sandra Russo
and Robin Young, the mothers in the pending lawsuit of Thomas S.
v. Robin Y.
The July 4 issue of The Nation included Tony Kushner's musing on
the meaning of gay liberation, under the title "Homosexual
Liberation - A Socialism of the Skin."
In Equal Pay for Equal Families (see above), Prof. M.V. Lee
Badgett argues that unmarried opposite-sex couples should be
included in domestic partnership benefits plans on the same basis
as same-sex couples. The article includes a table showing
colleges and universities that have adopted domestic partnership
plans. All but a handful are limited to same-sex couples.
Know Thine Enemies! Vol. 29, No. 2 (1994) of the Wake Forest Law
Review provides "the other side" on gays in the military: an
article by a law professor who testified in favor of keeping the
ban, an article by Senator Sam Nunn which gives his version of
the case for the ban, without ever mentioning homosexuality
(!!!), and a relatively balanced student note on Steffan v.
Aspin. See articles and note listed above. In the June 1994
issue of California Lawyer, Chandler Burr gives an
extraordinarily detailed report on the political maneuvering that
led to the adoption of "don't ask, don't tell" by the Clinton
Administration.
The Los Angeles Times published a lengthy feature article on July
12 by Susan Christian, titled "Battle Against Same-Sex Harassment
Comes Out of the Closet," detailing the difficulties of lesbian
and gay employees who suffer from sexual harassment in the
workplace. The focus is on the Mogilefsky case, in which the
California Supreme Court recently upheld a Court of Appeal ruling
that same-sex harassment in the workplace is actionable in
California.
Symposia:
Defining Family: Gays, Lesbians, and the Meaning of Family, 3
Wm. & Mary Bill of Rts. J. No. 1 (Summer 1994) (individual
articles listed above). * * * Changing Images of the State, 107
Harv. L. Rev. No. 6 (April 1994) (some individual articles noted
above). * * * Issues in Employee Benefits -- ERISA at Twenty, 72
Wash. U. L. Q. No. 2 (Summer 1994). * * * Surrogacy Legislation
in California, 28 U. San Fran. L. Rev. No. 3 (Spring 1994). * * *
44 U. Toronto L.J. No. 1 (Winter 1994) includes three articles
about the evolving definition of family, including one focused on
the Mossop case involving a same-sex couple's litigation for
benefits rights in Canada.
AIDS & RELATED LEGAL ISSUES:
Balek, Debra J., AIDS Dementia Complex: A New and Necessary
Insanity Defense, 40 Med. Trial Tech. Q. 467 (1994).
Ball, Carlos A. & Mark Barnes, Public Health and Individual
Rights: Tuberculosis Control and Detention Procedures in New York
City, 12 Yale L. & Pol. Rev. 38 (1994).
Boockvar, Kathryn, Beyond Survival: The Procreative Rights of
Women with HIV, 14 Boston Col. Third World L.J. 1 (Winter 1994).
Casswell, Donald G., Assessing the Physician's Standard of Care
When HIV Is Transmitted During Artificial Insemination, 10 J.
Contemp. Health L. & Pol. 231 (Spring 1994).
Farnham, Paul G., Defining and Measuring the Costs of the HIV
Epidemic to Business Firms, 109 Pub. Health Rep. 311 (May-June
1994).
Holland, Winifred H., HIV/AIDS and the Criminal Law, 36 Crim. L.
Q. 279 (1993-94).
Jayasuriya, D.C., A Comparative Review of AIDS Legislation in
Asia and the Pacific, 43 Int'l & Comp. L.Q. 391 (April 1994).
Macher, Abe, et al., Educating Primary Care Providers About HIV
Disease: Multidisciplinary Interactive Mechanisms, 109 Pub.
Health Rep. 305 (May-June 1994).
Mello, Jeffrey A., Prevalent Employer Discriminatory Behaviors
Toward Employees With HIV and the Likely Impact of the ADA, 45
Lab. L. J. 323 (June 1994).
Merton, Vanessa, The Exclusion of Pregnant, Pregnable, and Once-
Pregnable People (A.K.A. Women) From Biomedical Research, 19 Am.
J. L. & Med. 369 (1993).
Peinkofer, James R., HIV Education for the Deaf, A Vulnerable
Minority, 109 Pub. Health Rep. 390 (May-June 1994).
Philipson, Tomas, and Richard A. Posner, Public Spending on AIDS
Education: An Economic Analysis, 37 J. L. & Econ. 17 (April 1994)
(contends much AIDS education spending is wasted due to
inappropriate targeting and lack of explicitness; based on
chapter of their book on AIDS policy).
Ravitch, Frank S., Beyond Reasonable Accommodation: The
Availability and Structure of a Cause of Action for Workplace
Harassment Under the Americans With Disabilities Act, 15 Cardozo
L. Rev. 1475 (March 1994).
Schiff, Matthew B., AIDS and the Health Care Worker: Tort and
Workers' Compensation Liability, 29 Gonzaga L. Rev. 331
(1993/94).
Serbaroli, Francis J., Health Law: Confidentiality of Medical
Records -- Part II, NYLJ, 7/6/94, p. 3 (summary explanation of
HIV confidentiality law in New York as it relates to medical
records).
Whitty, Michael D., and Martin Andrukonis, Corporate Response to
the ADA in One City, 45 Lab. L. J. 306 (May 1994) (Notes many
businesses seem unaware that ADA covers HIV/AIDS, and calls for
concerted public education effort to implement the law).
Wilson, John P., The Resolution of Legal Impediments to the
Manufacture and Administration of an AIDS Vaccine, 34 Santa Clara
L. Rev. 495 (1994).
Student Articles:
Cole, Joycelyn L., AIDS-Phobia: Are Emotional Distress Damages
for Fear of AIDS A Legally Compensable Injury?, 19 Thurgood
Marshall L. Rev. 333 (Spring 1994).
Curnin, Kevin J., Newborn HIV Screening and New York Assembly
Bill No. 6747-B: Privacy and Equal Protection of Pregnant Women,
21 Fordham Urban L.J. 857 (Spring 1994) (opposes mandatory
unblinded HIV testing of newborns).
DiMaggio, Susan L., State Regulations and the HIV-Positive Health
Care Professional: A Response to a Problem That Does Not Exist,
19 Am. J. L. & Med. 497 (1993).
Fell, Mary Jean, The Emergency Medical Treatment and Active Labor
Act of 1986: Providing Protection From Discrimination in Access
to Emergency Medical Care, 43 Catholic U. L. Rev. 607 (Winter
1994) (No direct discussion of AIDS, but useful analysis of law
on recurring AIDS issue).
Hartman, Laura, The Disabled Employee and Reasonable
Accommodation Under the Minnesota Human Rights Act: Where Does
Absenteeism Fit Into the Law?, 19 Wm. Mitchell L. Rev. 905 (Fall
1993).
Summers, Patrick F., Civil Rights: Persons Infected with HIV:
Stewart B. McKinney Foundation v. Town Plan & Zoning Commission:
Forcing the AIDS Community to Live a Prophylactic Existence, 46
Okla. L. Rev. 531 (Fall 1993).
Book Reviews:
Feitshans, Ilise Levy, Review of Bayer & Kirp, eds., AIDS in the
Industrialized Democracies: Passions, Politics and Policies and
Jonsen & Stryker, eds., The Social Impact of AIDS in the United
States, 15 Mich. J. Int'l L. 807 (Spring 1994).
Symposia:
Issues in National Health Care Legislation, 21 Hastings L. Q. No.
3 (Spring 1994).
Specially Noted:
The July 4 issue of The Nation included part 1 of a sober
assessment of the current status of AIDS research, by David Kirp,
a public policy professor at University of California at
Berkeley, titled "AIDS in Our Time - 1: After the Band Stopped
Playing."
Editor's Note:
All points of view expressed in Lesbian/Gay Law Notes news
reports are those of identified writers, and are not official
positions of the Lesbian and Gay Law Association of Greater New
York. Views expressed in the Announcements and Publications
Noted section are those of the Editor. Correspondence pertinent
to issues covered in Law Notes is welcome. * * * E-mail can be
sent to Law Notes Editor Art Leonard at TYWS43A@prodigy.com. or
ASLeonard@aol.com * * * We resume regular monthly publication
with the September issue.